Poon and Minister for Immigration and Multicultural Affairs
[2000] AATA 964
•18 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 964
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/153
GENERAL ADMINISTRATIVE DIVISION )
Re LIZA SUI YIN POON
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D. Chappell, Deputy President
Date18 August 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd Dr D Chappell)
..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 100 prospective spouse visa – citizen of Hong Kong/China –– past and present general conduct – overstayed visitor visa – deported from Australia – stowed away – re-entered Australia illegally – lodgement of application for entry permits – applications refused - lodgement of application for protection visa – application refused – marriage to review applicant – application for business visitor's visa – consideration of the character test - not a person of good character – consideration of the discretion - consideration of the protection of the Australian community – considerable weight placed on deterrence – consideration of the expectations of the Australian community immigration malpractice should not be rewarded– other considerations – some hardship and disruption
Migration Act (1958) s501
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277
Irving v Minister for Immigration, Local Government and Multicultural Affairs (1996) FCR 422
Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187
REASONS FOR DECISION
18 August 2000 Dr D. Chappell, Deputy President
BACKGROUND
Application and Hearing
This is an application by Ms Liza Poon (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant to her husband, Mr Joseph Shou Hing Ngai (the visa applicant) a subclass 100 (spouse) visa. The refusal was based on a finding that Mr Ngai was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision. An application for such a review was lodged with the Tribunal on 3 March 2000 (T1).
Mr Don Hegarty, a migration agent, represented Ms Poon at the hearing. Ms Poon gave personal testimony to the Tribunal. The Tribunal was also grateful for the interpreting assistance provided by Ms Alice Chan.
Ms Elizabeth Warner, of the Australian Government Solicitor's Office, represented the respondent. No witnesses testified on behalf of the respondent.
The Tribunal had before it documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No. Description Date
A1 Minister's second reading speech: Migration Legislation Amendment (Strengthening of Provisions Relation to Character and Conduct) Bill 1998
A2 MSA relating to s501(6)(c)
A3 Letters from visa applicant to review applicant; credit card details and phone bills
R1 Chronology of Events
LEGISLATIVE AND POLICY PROVISIONS
In order to be granted a subclass 100 (spouse) visa the applicant must satisfy the relevant public interest criteria, including item 4001 in Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa.
Section 501 of the Act provides:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…(6) For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct
the person is not of good character;Thus the issue which the Tribunal must determine is whether Mr Ngai does not satisfy the character test for the purpose of s501(6)(c) of the Act. If the Tribunal is satisfied that Mr Ngai does not satisfy this test then it may nevertheless exercise the discretion under s501(1) of the Act not to refuse the grant of the visa in his favour.
Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under s499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation under Section 501 – No.17" (the Policy Direction: T5). The Preamble to the Policy Direction states, in part:
This Direction provides guidance to decision to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.
The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.
(T5: 44)Reference will be made later in this decision to those provisions of the Policy Direction which are relevant to the Tribunal's consideration of the present matter. But first the Tribunal turns its attention to the evidence presented concerning Mr Ngai and the application of the character test under s501.
EVIDENCE
Past and Present General ConductIt was the general contention of the respondent that Mr Ngai does not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of his past and present general conduct. Paragraph 1.9 of the Policy Direction has the following to say about the way in which decision makers should apply the character test under this particular head.
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
The Policy Direction also indicates that:
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).
In both its Statement of Facts and Contentions, and in the presentation of its case at the hearing, the respondent indicated that it was principally paragraph 1.9(a), (b) and (d) of the Policy Direction which were most relevant to Mr Ngai. While not disputing this, the applicant's case proceeded on the basis that there were countervailing factors which would justify a finding by the Tribunal that Mr Ngai did meet the character test.
In reviewing the evidence relating to Mr Ngai's past and present general conduct it is most convenient to consider both his background and behaviour under the following chronological headings:
pre-arrival in Australia
first entry and stay in Australia: 1981 – 1985
second entry to Australia: 1985-1990
immigration applications: 1990 – 1997
marriage and departure from Australia: 1997
spouse and related visa applications: 1997 – 2000
It should also be noted that Mr Ngai did not give personal testimony to the Tribunal. Accordingly, the only evidence relating to his past and present general conduct to which the Tribunal has been able to have regard is that contained in the 720 pages of T documents; the exhibits which have been referred to; and the personal testimony which was provided by Ms Poon as the review applicant. The parties were also in agreement that a chronology of events prepared by the respondent represented an acceptable summary of the various and principal events relevant to this case. That chronology of events is contained in Attachment 1.
Pre-Arrival in AustraliaMr 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)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).
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)
First Entry and Stay in Australia: 1981 – 1985
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 Mr Goei said that he arrived in Australia 4 years ago TO STATUS 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 Mr Goei has refused to provide details about himself.
CIRCUMSTANCES He has told an interpreter that he does not wish to be returned home and he would prefer to "rot" in prison.
POSSIBILITIES OF Mr Goei could apply for a temporary entry permit but
REGULARIZATION OF having regard to the applicable policy such anSTATUSapplication 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)
Following his deportation from the country to Indonesia Mr Ngai made his way back to Hong Kong.
Second Entry to Australia: 1985 – 1990About 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)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)
Immigration Applications: 1990 – 1997
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.
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)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)
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)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).
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)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)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)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)The Tribunal also concluded that Mr Ngai was a national of the PRC rather than of Indonesia, Macau or Hong Kong (T: 381).
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).
Marriage and Departure from Australia: 1997On 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)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.
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
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)
APPLICATION OF THE CHARACTER TEST
The meaning of the term "good character", as used in s501 of the Act, is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court: see Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187, Irving v Minister for Immigration, Local Government and Multicultural Affairs (1996) FCR 422 and Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277. During the course of her submissions made on behalf of the respondent, Ms Warner made reference to Baker and, in particular to the following statement contained in that Full Federal Court decision about how general conduct should be taken into account:
We do not think there is any warrant for extracting from the broad word "general", a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.
On the basis of the evidence which I have reviewed, Ms Warner contended that a history of general conduct laid bare Mr Ngai's character very tellingly and that the Tribunal should not be satisfied, accordingly, that he passed the character test. Mr Hegarty contended, on the other hand, that the Tribunal should be satisfied that Mr Ngai did now meet that test. Mr Hegarty contended, in particular, that Mr Ngai's conduct was not the type which was intended to be dealt with under the provisions of s501.
Mr Hegarty referred the Tribunal to the second reading speech of the Minister, when introducing amendments to s501 (see A1). I will just make brief mention of the speech, to give an indication of what Mr Hegarty's contention was. The Minister was quoted as saying:
The purpose of this Bill is to ensure that the Government can effectively discharge its fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background, or who have criminal associations.
"a small proportion of non-citizens seeking to enter Australia do have substantial criminal backgrounds or criminal associations. Others commit crimes while they are in Australia... "
(A1)As I understood it, Mr Hegarty's contention was that Mr Ngai had no criminal record and he also had no criminal background. As such, the provisions of s501 were never intended to apply to people like him and therefore the Tribunal should find Mr Ngai to be of good character. It was also contended by Mr Hegarty that even if Mr Ngai was not of good character in the past, his present and recent conduct showed that he had now reformed. There had been no breaches by him of migration laws, possibly since 1994 and certainly since 1997, and there was also a genuine marriage to Ms Poon.
I turn now to the Tribunal's views. First, the Tribunal rejects the submission that s501 is concerned only with persons possessing a criminal background. There is clear and unambiguous language that it is concerned with both past and present general as well as criminal conduct. While the Minister may have dwelt in his Parliamentary introduction of the legislation on criminal aspects of the then bill, the bill has a much broader reach.
It is also well established, as I have already indicated from the Full Federal Court decisions, what is meant by the term "good character". The Tribunal thus rejects the applicant's contention that Mr Ngai meets the character test. The onus is on the applicant to satisfy the Tribunal that Mr Ngai does meet that test and in the Tribunal's opinion he has failed in that onus. There is overwhelming evidence that Mr Ngai's enduring moral qualities are those of a person of bad character. There are a number of instances of objective behaviour in regard to his long history of immigration involvement with this country which do lay bare very tellingly his true character. These instances began in 1981 when Mr Ngai first entered this country. He may have done so on a valid visitor's visa, although only his word is really available as to that method of entry and little credence can, in the Tribunal's opinion, be given to anything that has been said by Mr Ngai. The Tribunal was not able to test his credibility through any personal testimony he provided, nor was the respondent able to cross-examine him about a wide range of behaviour over the course of nearly 20 years of interactions with immigration officials of this country.
It is clear from the documentary evidence that I have referred to that Mr Ngai has given inconsistent and conflicting accounts of his various activities from the moment of his first entry to this country. In 1985 he told the Australian authorities that he was a seaman deserter. He also told them later that he came to this country via a Thai Airways flight with a visitor's visa. On another occasion he indicated that he had come by a Cathay Pacific flight with a visa. Yet whatever means he used he stayed here illegally and worked underground until he was caught as a result of an anonymous tip. Once he was caught he refused to cooperate and indicated at that time that he would seek to return to this country if deported. As the evidence shows not only was he deported but he did return as a stowaway and again remained underground until 1990.
Mr Ngai seems only to have surfaced because he hoped that he could benefit from some possible amnesty that was to be given to illegal immigrants. There then followed a series of immigration applications made, in the Tribunal's view, with a full knowledge that they were based on quite fanciful grounds and designed to achieve permanent residency in this country by whatever means were available. This was the case with the EETEP to which I have referred. It was also the case with the refugee application which Mr Ngai admitted in his interview with Mr Menetrey was based upon bogus grounds suggested to him by some nameless Migration Agent.
In fact, Mr Ngai has displayed a consistent tendency to blame others for what has happened to him including criticising the Australian Immigration authorities for not having a good record of his entry into the country in 1981. Mr Ngai then went through the entire refugee review process which included, as I have already indicated, two direct RRT decisions, the seeking of Ministerial discretion in his favour and even the lodging of a third protection visa application. When all of that had transpired he then married Ms Poon.
The Tribunal believes from all of the evidence which is available to it about that marriage that it too was contrived – basically an act of last resort after Mr Ngai ran out of other options to remain in this country, or obtain permanent residency. In his interview with Mr Menetrey, Mr Ngai claimed to have no knowledge of Ms Poon's own marital history other than that with her most recent husband. The Tribunal does not believe this claim by Mr Ngai. Ms Poon said she told Mr Ngai all about her earlier history, and she also admitted that she had entered into an arranged marriage on a prior occasion.
The Tribunal did not find Ms Poon to be a totally credible witness. She admitted that she had divorced from an earlier marriage just before she married Mr Ngai. Her marital history is in itself most suspicious. Even if Ms Poon did enter into what she believed to be a genuine relationship with Mr Ngai, the Tribunal does not believe, on the basis of the evidence before it, that Mr Ngai was himself entering into such a relationship. Rather, the Tribunal believes that Mr Ngai married Ms Poon for cynical reasons because she gave him the opportunity to apply for the visa that he seeks. The evidence that was tendered on his behalf relating to formal letters, phone call records and even visits are, in the Tribunal's view, only actions intended to bolster this charade.
Overall, the Tribunal finds that Mr Ngai has displayed contempt and disregard for immigration laws and, through his objective conduct and behaviour, has demonstrated that he is not a person who satisfies the character test.
EXERCISING THE DISCRETION
PolicyHaving not been satisfied that Mr Ngai passes the character test the Tribunal must now determine whether it should still exercise its discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Mr Ngai. The Policy Direction refers to a number of factors to which decision makers should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations.
The three primary considerations to which the Tribunal must have regard are:
the protection of the Australia community, and members of the community;
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
(paragraph 2.3)
Protection of the Australian Community
In the present case only the first two of these primary considerations require attention since the evidence shows that the children of Ms Poon and Mr Ngai are now adults. In regard to the first, the protection of the Australian community, the
Policy Direction notes the following:
2.4The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(paragraphs 2.4-2.5)
Among the examples given by the Policy Direction of offences which are considered by the Government to be very serious are:
(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.
(paragraph 2.6(c))
The nature of the conduct engaged in by Mr Ngai has already been set out in considerable detail. It is clear that this conduct falls within that described in paragraph 2.6(c) of the Policy Direction even though it was acknowledged by the respondent that he had not been prosecuted nor convicted of any specific crime under the provisions of the Act.
In relation to the other matters referred to under the heading of the protection of the Australian community within the framework of the Policy Direction it was not contended by the respondent that there was a likelihood that Mr Ngai would repeat his conduct if finally allowed lawful entry to Australia (Policy Direction: paragraph 2.10). It was contended, however, that the issue of general deterrence was very relevant in Mr Ngai's case. A refusal of a visa in this case would send a strong deterrent message to persons contemplating similar actions that they would not succeed in circumventing Australia's immigration laws.
Expectations of the Australian CommunityIn the submissions made on behalf of the respondent, Ms Warner contended that the Australian community would expect that Mr Ngai would not be rewarded for his conduct while in Australia. The Australian community would expect Mr Ngai to be refused a visa to enter and remain in this country following his repeated breaches of immigration laws.
In his submissions, Mr Hegarty disputed that the only expectation of the Australian community would be to deny the applicant a visa. He drew the attention of the Tribunal to other provisions of the Act and Regulations which allowed illegal non-citizens to apply for a visa on the grounds of a marriage which had existed for at least two years. He suggested this was inconsistent with the Policy Direction. There was a genuine marriage here which had existed for more than two years.
Other ConsiderationsParagraph 2.17 of the Policy Direction refers to a number of other matters which, although not primary considerations, may be relevant to the exercise of the discretion under the Act. The Policy Direction states, in part, that:
2.17 It is the Government's view that where relevant, it is appropriate these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
(Policy Direction 2.17)
I have already set out the Tribunal's views in relation to the genuineness of the marriage. In relation to disruption, it was acknowledged by the respondent that disruption would occur to Ms Poon's plans in particular, assuming her relationship with Mr Ngai to be genuine, should her husband be denied a visa. She would be required either to go to Hong Kong to join her husband or, as she suggested, she might move to New Zealand and Mr Ngai could visit with her there. She indicated that her son was not willing to leave to go to either Hong Kong or New Zealand, and this would cause her significant hardship.
The Policy Direction mentions as a relevant factor consideration of the degree of hardship which would be caused to any immediate family members who are lawfully resident in this country, as well as the composition of the family of the non-citizen both in Australia and overseas. On this issue, the evidence showed that the remaining members of Mr Ngai's family were in Hong Kong, although it was also suggested that Mr Ngai's daughter may have come to this country as a student.
CONCLUSIONA balancing process is required when exercising the discretion under s501 of the Act.
Decision makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the important placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
(paragraph 2.2)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.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 14, 15 August 2000
Date of Decision 18 August 2000
Solicitor for the Applicant Mr Don Hegarty, Migration Agent
Solicitor for the Respondent Ms Elizabeth Warner
ATTACHMENT 1
CHRONOLOGY OF EVENTS
DATE EVENT DOC. REF.
30-09-53 DOB Ngai, Joseph (aka Goei, Soei Kheng) f483
05-05-81 Marries 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
04-11-81 Daughter born in Hong Kong (Kar Hang NGAI). Mother is previous wife, Yin Mee LO f167
17-01-85 Apprehended and taken into Immigration detention f284
05-02-85 Writes 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
05-02-85 Is 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
01-03-85 Deported from Australia f294
05-03-85 After 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 or August 1985 Returns illegally to Australia as a stowaway f170, f273 but cf f397
1985-1990 From his illegal return to Australia sometime in 1985 until lodgement of EETEP application, remains in Australia illegally, working illegally
09-02-90 Files 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
13-09-90 DIMA writes to Ngai enclosing assessment report re EETEP ff154-159
20-10-90 Signs statutory declaration re refugee application f185
22-10-90 Application 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
06-11-90 Applied to DIMA for refugee status f329
13-05-91 DIMA refuses EETEP f206
03-10-91 Interviewed by DIMA in relation to refugee application ff240-242
09-10-91 Writes to DIMA reiterating hardship claims. Again refers to opportunities for false marriage. f236
26-10-92 Refused refugee status by delegate of MIMA ff248-257
04-12-92 Applied for review of refusal of refugee status to RSRC ff265-271
28-06-94 RRT 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)
12-07-94 Lodges application for a class 816 (permanent) entry permit f352
Easter 1995 Ms Poon meets Mr Ngai f43 & f23 (but cf f97)
10-08-95 816 PEP is refused as DIMA has no record to show that Mr Ngai ever entered Australia legally in 1981 f352 and following
05-01-96 Further 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
30-01-96 Writes to Minister seeking his intervention under s.417 f384
08-10-96 Lodges further protection visa application f385 and following
12-11-96 Is advised by DIMA that the further PV application is invalid in that it discloses no new information f411
02-04-97 Marriage to Poon f14
06-03-98 Mr Ngai applies for business visitor's visa (refused 12 March 98) f8
12-08-98 Mr Ngai applies for migration to Australia as a spouse f8 (application is at f480 and following)
23-02-99 Interview with Ms Poon and DIMA at Rockdale ff43-46
07-09-99 Ngai is interviewed by Australian Consul (immigration) in Hong Kong ff31-38
15-09-99 Ms Poon is interviewed by Australian Consul (immigration) in Hong Kong ff40-42
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