Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1065
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/371
GENERAL ADMINISTRATIVE DIVISION ) Re
Bruce Barnett
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date22 October 2003
PlaceCanberra
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Lin Ming.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 spouse (provisional) visa – character test – examination of the Visa Applicant’s immigration misconduct – examination of the Visa Applicant’s past and present general conduct – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community with any hardship to the Applicant - held that the Visa Applicant fails the character test – held that Tribunal’s discretion is to be exercised in favour of the Visa Applicant – decision of the Respondent set aside – matter remitted to the Respondent with a direction that the discretion to not refuse the grant of a visa should be exercised in favour of the Visa Applicant.
Migration Act 1958 ss 501, 501(6)(c)(ii)
Goldie v Minister forImmigration and Multicultural Affairs (1999) 56 ALD 321
Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Vaitaikiv Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister forImmigration and Multicultural Affairs (2001) 107 FCR 133
REASONS FOR DECISION
22 October 2003 Mr RP Handley, Deputy President 1. This is an application by Bruce Barnett (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 17 September 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to Mr Barnett’s spouse, Lin Ming (“the Visa Applicant”).
2. At the hearing, which was held in Canberra, the Applicant was represented by Marion Le, Migration Agent, and the Respondent was represented by Jim Neely, Solicitor, of the Australian Government Solicitor’s office. The documents before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), including supplementary T documents (“the S Documents”), together with other evidence tendered by the parties. Oral evidence was given in person by Bruce Barnett, Ross Dunn, Dr Que Shao-Hua, Dr Jian Xiu Wei, and Brian Saines, and by conference telephone by Lin Ming, Lai Chung Chui, Teng Mai, Kerry McKinnon and Zhao Sandy Xue Hong.
Background
3. The Applicant, Mr Barnett, was born in Wollongong on 28 May 1943 and is aged 60. On 20 May 1966, Mr Barnett married Josephine Barnett. The marriage ended in divorce on 14 January 1977 (T p227). They had two children: Troy Bruce Barnett, born on 9 December 1966 and now aged 36, and Christopher Grant Barnett, born on 13 June 1969 and now aged 34. On 23 May 1980, Mr Barnett married Diana Mary Barnett. The marriage ended in divorce on 3 June 2001 (T p191), there being no children of the relationship. Mr Barnett is an electrician and lives in Canberra.
4. The Visa Applicant, Lin Ming, was born in a village near Fuqing City, Fujian Province, in the People’s Republic of China, on 19 February 1972 and is aged 31. On 6 April 1990, Ms Lin married Yang Wen Fang in Fuqing City. This marriage ended in divorce on 20 September 1999 (T p193). They had two sons: Yang You Xing, born on 21 September 1990 and now aged 12, and Yang Chang Feng, born on 8 April 1997 and now aged six (T p207). Ms Lin’s eldest son, Yang You Xing, resides with his father, and her youngest son, Yang Chang Feng, resides with Ms Lin and her family (T p86).
5. Ms Lin arrived in Australia on 2 January 2000, on a subclass 456 visitor (temporary business) visa valid for one month, issued in the name of Yuan Liang Ying (T6). On 31 January 2000, Ms Lin lodged an application for a protection visa in the name of Ms Yuan (T5 and T8 p69) with the assistance of Bestway Global Services, Migration Agents, of Sydney (T p68). The application was made on the basis that she was a member of the Falungong movement (T p62). The application was refused on 12 February 2000 (T10 p72).
6. Ms Lin (using the name Ms Yuan) remained in Australia unlawfully when her visa expired and worked without permission. She sought assistance from another person purporting to be a migration agent but no further application was lodged at that time.
7. In May 2000, Mr Barnett and Ms Lin met in Canberra where Ms Lin was working at the time. They commenced their relationship within a short time of meeting (T p168).
8. On 25 February 2001, Ms Lin (using the name Ms Yuan) was arrested by the Australian Federal Police (“AFP”) while working in a brothel in Fyshwick, Canberra. On 26 February 2001, Ms Lin (under the name Ms Yuan) applied for a bridging visa E (T p89) which was granted to her, conditional on the payment of a surety of $10,000 which was provided by Mr Barnett (T16 p98). This bridging visa was valid until 12 March 2001.
9. On 8 March 2001, Ms Lin provided the Respondent with a copy of her true Identification Card from the People’s Republic of China. On 9 March 2001, Ms Lin made an application for a bridging visa E, using her true identity. This was granted on 9 March 2001, valid until 23 March 2001 (T p101). Further bridging visas E were granted to Ms Lin as follows: on 21 March 2001, valid until 6 April 2001 (T p107); on 6 April 2001, valid until 20 April 2001 (T p124); on 20 April 2001, valid until 11 May 2001 (T p128); on 11 May 2001, valid until 25 May 2001 (T p134); on 25 May 2001, valid until 8 June 2001 (T p142); and on 8 June 2001, valid until 8 July 2001 (T p145).
10. On 9 June 2001, Mr Barnett and Ms Lin were married in Canberra (T p184). On 8 July 2001, Ms Lin departed Australia for the People’s Republic of China, having first obtained a new travel document in her real name with the assistance of the Chinese Embassy.
11. On 18 July 2001 (T p160), Mr Barnett lodged an application for a subclass 309 spouse (provisional) visa with the Canberra office of the Department of Immigration and Multicultural and Indigenous Affairs (”the Department”) (T p161). On 18 October 2001, Mr Barnett and Ms Lin were interviewed by a Senior Migration Officer at the Australian Consulate in Guangzhou (T p216). On 17 September 2002, a delegate of the Respondent decided to refuse the grant of a subclass 309 spouse (provisional) visa to Ms Lin on the ground that she is not of good character because of her past and present general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”).
12. On 20 September 2002, Mr Barnett lodged an application for a review of this decision with the Tribunal.
Relevant Law and Policy
13. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(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;…
14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
16. The issue for the Tribunal to determine in this case is, therefore, whether Ms Lin is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
Evidence
Bruce Barnett (the Applicant)
17. Mr Barnett said he was born in Wollongong where his mother still lives in the suburb of Warilla. He lives in Kaleen in the Australian Capital Territory where he has bought a house with the assistance of a housing loan. Mr Barnett settled in the ACT in 1998. He is not proposing to retire at the age of 65 but will continue working as an electrician. Before 1998, he travelled around doing electrical work on construction sites. He has only had superannuation since 1998 and has a substantial amount yet to repay on his housing loan. Currently, he earns $48,420 per annum. He finds it difficult to support his wife financially in China. He sends her about $300 per month which is equivalent to a reasonable wage there. His wife’s younger son lives with her and her older son lives with her ex-husband.
18. Mr Barnett has been divorced twice previously. He has two adult sons by his first marriage, one of who lives in Canberra and one on the Gold Coast. They are both married and each has one son. Mr Barnett said he sees his Canberra based son and his family, including his grandson, at least once a month. He visits his mother, who will be 81 years this year and whose health is “pretty good”, every second or third weekend. He is also close to his brothers, one of whom lives near his mother.
19. Mr Barnett said he met Lin Ming, whom he knows as Yingzi, in May 2000 through a friend whose wife was a friend of Ms Lin’s. They all went out to a restaurant together and afterwards Mr Barnett and Ms Lin exchanged telephone numbers. Thereafter, Mr Barnett and Ms Lin went out together and commenced a relationship leading eventually to Ms Lin moving in with Mr Barnett in his house in Kaleen about one month after they met. Initially, Mr Barnett said he had no idea of Ms Lin’s immigration status. She was working in a brothel in Canberra having been recruited in Sydney to work in a massage parlour. At the time she was recruited, she did not know she would be required to work in a brothel. She hated the work but believed it was the only way she could repay a debt of about 250,000 yuan (approximately Aus$50,000) (T p83) which she had borrowed to obtain her travel documents and come to Australia.
20. Mr Barnett knew from the beginning that Ms Lin was working in a brothel. He tried to dissuade her from doing so but she insisted on continuing and he was not in a position to assist her with her debt: the amount he could have contributed would have made little difference to the overall amount of the debt. In cross-examination, Mr Barnett said he did not meet Ms Lin at the brothel in Fyshwick as suggested by Mr Saines’ record of interview dated 26 February 2001 (T12). Mr Barnett said he was present during the interview with Mr Saines on 26 February 2001 and never said that he had worked in the brothel. He has always been an electrician.
21. Mr Barnett said when Ms Lin moved in with him, he still knew her by the name she was then using, Yuan Liang Ying. He saw her passport when she brought it with her to his house. The first he knew of her real name was after she was arrested in February 2001. He was a bit surprised. She told him the same story that she has told to everyone else: that she purchased the passport and visa from a man who came to her house in China selling massage equipment. Mr Barnett said because he was in love with Ms Lin, the fact that she had another name did not make any difference to their relationship, but he was concerned that she might have been caught up in an immigration racket in China.
22. Ms Lin was arrested at the brothel where she was working in Fyshwick and taken to Civic Police Station where Mr Barnett went to see her. He understood that she had been arrested because she was not permitted to work and was therefore working illegally.
23. After Ms Lin moved in with Mr Barnett in about June 2000, although they thought Ms Lin was probably in Australia legally, they were both concerned about whether she was entitled to work. Mr Barnett contacted a migration agent in Civic in Canberra as to the legality of Ms Lin’s situation and faxed him a copy of a letter dated 3 March 2000 provided to Ms Lin by Starnet Legal Pty Ltd (“Starnet Legal”) (T11). This letter advised that a Mr Boden acted for Ms Lin and was in the course of preparing submissions for the Department of Immigration. Ms Lin told Mr Barnett that she had paid a large amount of money in connection with this letter. On receipt of the letter, the migration agent in Civic invited Ms Lin and Mr Barnett to go in and see him but they did not do so because Ms Lin did not trust Australian migration agents. Mr Barnett said he tried phoning Starnet Legal and asked to speak to Mr Boden on a number of occasions, but on each occasion he was told Mr Boden was not available.
24. On two occasions in about September/October 2000, Mr Barnett took Ms Lin to see a migration agent in Chinatown in Sydney who was Chinese speaking. She told Ms Lin that she could pursue the matter on Ms Lin’s behalf if Ms Lin paid her, but Mr Barnett was not clear how much she asked for. As far as he knows, nothing came of these consultations. [The Tribunal notes that this agent appears to have been Sino-Pacific Holding Pty Limited to whom Ms Lin paid $200 (T50 p265).] Mr Barnett said Ms Lin had told him previously that while she was in Sydney and before she moved to Canberra, she worked in a chicken processing shop, and it was about this time that she went to see a migration agent in Sydney who, Ms Lin told him, took advantage of her and lied to her.
25. Mr Barnett said he and Ms Lin were married on 9 June 2001 at his home in Kaleen with the marriage ceremony performed by a civil celebrant. Mr Barnett said he decided to marry Ms Lin because he loved her. He knew at that time that she would have to leave the country because she had already been issued with a number of bridging visas. He denied that he married her in order to enhance her chance of getting back into the country. Thirty or 40 guests attended the wedding, including his mother, one of his brothers, one of his sons and other family members and friends. Mr Barnett produced some photographs including some of the wedding showing that Ms Lin is only a little shorter than Mr Barnett who is 5 feet 10 inches tall. Thus, she is tall for a person of Chinese origin.
26. Mr Barnett said when he first met Ms Lin, she spoke very little English although they still managed to communicate. He has been trying to assist her with her English skills and she is steadily getting better. When they first met, she could neither read nor write English. Even now she can only read or write a little. Her native language is the Fujian dialect but she also speaks Mandarin, with which at times she has some difficulty. She does not speak Cantonese.
27. Mr Barnett said when they were married, he thought Ms Lin would be able to stay in Australia. However, when they tried to lodge a spouse visa application, they were told the visa application could not be lodged in Australia. Ms Lin was required to leave the country and lodge the application off-shore and to do so it was necessary for her to obtain a travel document in her own name through the Chinese Embassy in Canberra. Brian Saines, the departmental officer who had interviewed Ms Lin, took her to the Embassy accompanied by Mr Barnett’s friend, Ross Dunn, in order to obtain a travel document. Mr Barnett did not go with them on that occasion although he was asked to go separately by himself on another occasion when he was interviewed by the First Secretary (Consular) of the Embassy about his intentions and especially as to whether he would take good care of Ms Lin. The First Secretary (Consular) told him that Ms Lin was a good person.
28. Once Ms Lin had been issued with a travel document, and before the expiry of her last bridging visa E, she departed Australia on 8 July 2001. Mr Barnett confirmed that he had acted as guarantor in respect of her bridging visas providing a surety for $10,000. He thought that once she was offshore, she would be able to lodge a spouse visa application and then she would be granted a visa enabling her to return to Australia soon thereafter. Nobody suggested that there would be any difficulty in her getting a visa. Even in the story which appeared in the Canberra Times on 30 June 2001 (T p203), a spokesman for Mr Ruddock was reported as saying that Ms Lin’s application “would be looked on with empathy”.
29. Mr Barnett said he has been to China since Ms Lin’s departure and has stayed with her and her family. He has met her younger son and her brothers and sisters. Her mother had been caring for her younger son while she was in Australia and Ms Lin is now living with her mother and two brothers, their wives and one of the brother’s children in the family home. On his first visit, Mr Barnett went with Ms Lin for an interview with Kerry McKinnon at the Australian Consulate in Guangzhou. When Ms McKinnon interviewed Mr Barnett, she asked whether he had told his mother where Ms Lin was working. Ms Lin was interviewed after him. She came out crying and Mr Barnett asked to see Ms McKinnon again. He went in with her to see Ms McKinnon and asked Ms McKinnon why she thought his wife was crying. Ms McKinnon said that she did not believe his wife’s answers. Ms McKinnon later told him on the phone that she had doubts about whether Ms Lin loved him. Mr Barnett said he did not see notes being taken at the interview.
30. Mr Barnett said his second and third visits to China have been purely to visit his wife. He has established a good relationship with her younger son who is aged six and whom Mr Barnett hopes to be able to bring to Australia with his wife. Mr Barnett said his wife has not faced persecution since returning to China. She has not been able to find work except for two or three months sweeping the floors in a restaurant which did not earn sufficient money to enable her to support herself. Xi Jiang, the village where she lives, is close to Gaoshan in Fujian Province, about 40 to 50 kilometres south of Fu Jian Sheng which in turn is about two and a half hours south by bus from Fuzhou, the capital of Fujian Province.
31. Mr Barnett said he loves his wife very much and would be prepared to go to China to be with her if he is permitted to do so. However, he is only permitted to go for three months on each visit. Moreover, he would not be able to work because the Chinese Authorities would not grant him a work permit. Going to China would be very difficult financially because his only asset is the equity in his house on which he has a substantial housing loan secured by a mortgage.
32. Another difficulty is Mr Barnett’s need to have three monthly checks for skin cancer. He has already had three melanomas removed. The local medical facilities in China are not great. In the village where Ms Lin lives, the fields are still ploughed using buffalo. They still use well water in the village although he encourages her to buy water because of the danger of infection.
Dr Que Shao-Hua
33. Dr Que gave evidence about Ms Lin’s household registration (sometimes known as the Family Book). She is a NAATI level 2 accredited interpreter and casual lecturer at the Centre for Continuing Education at the Australian National University. Dr Que said that the tendered document (R1) was a Resident Registration Book for Ms Lin’s family showing her as the primary householder because she has no husband present in the household. The reference to Ms Lin’s education level as being “Elementary Secondary” indicates that she was educated to a level between year 7 and year 9, approximating to a student aged between 13 and 15. The issue date on the documents is 23 April 2001.
Ross Dunn
34. Mr Dunn, who is the Manager, Employment Relations at the University of Canberra, provided an affidavit dated 26 November 2002 (A2). Mr Dunn said he has known Mr Barnett since 1976 and usually sees him at least weekly and sometimes two or three times a week, although Mr Dunn acknowledged that he probably did not go to Mr Barnett’s house in the period between May and November 2000. It was about November 2000 that he first met Ms Lin. He considered Mr Barnett and Ms Lin as a loving couple living in a stable relationship.
35. Mr Dunn said both he and his wife questioned Ms Lin independently at length in private as to her motivation before she and Mr Barnett were married. Mr Dunn also asked her about the age difference. Ms Lin said she was not concerned and that such an age difference between husband and wife was not uncommon in China and anyway, she loved Mr Barnett and wanted to care for him. Mr Dunn said Ms Lin has been fully accepted by members of Mr Barnett’s family. Since Ms Lin’s return to China and her separation from Mr Barnett, he has been a different person struggling to remain “even-keeled” and showing signs of stress. Mr Barnett has phoned her every day over the past two years and helps support her financially in China.
36. Mr Dunn said Mr Barnett was in turmoil about Ms Lin working in a brothel and she had told him that she was the victim of a scam. Mr Barnett was at first reluctant to tell Mr Dunn the full story. Mr Dunn said Ms Lin is a modest, quite shy person and she was doing something deeply repugnant to her as a result of being duped. She fell prey to a con man in China, and borrowed money to acquire the passport and visa for entry into Australia, falling into a terrible trap. She was deeply embarrassed and ashamed of what she was doing. Mr Dunn said he has not seen a flicker of deceit in Ms Lin. Although he is not professionally qualified to make a psychological assessment, he has had a long experience of human resource management and dealing with people. Ms Lin believed that if she went back to China without repaying the debt, she might be in danger. Mr Dunn is not aware of whether the debt has now been repaid.
37. Mr Dunn said Ms Lin was brought up in the Christian tradition by her mother. Mr Dunn noted that Ms Lin is tall and fairly slender although well built and strong. He is not aware of her having worked in China. She has mainly been involved in looking after the children of the family. She told him that when she arrived in Sydney, she worked in a chicken processing factory, living in a dormitory with others and earning very little.
38. Mr Dunn said he is aware that Ms Lin entered Australia on a passport in which she assumed a different identity. She had expected that she would obtain a legitimate passport from the person who had organised this and acted on that person’s reassurance when, at the last minute before leaving China, she was given the passport and discovered that it was in a different name. Mr Dunn said although Ms Lin is highly intelligent, she was naive, unsophisticated and unworldly at that time.
39. Mr Dunn said he went with Ms Lin and Mr Saines to the Chinese Embassy in Canberra to meet a senior official there to ask that Ms Lin be provided with a travel document in her own name to enable her to return to China. Mr Dunn confirmed that this was Ms Hu Fugen, the First Secretary (Consular) at the Embassy. Ms Lin spoke to Ms Hu for about ten minutes in what Mr Dunn assumed to be Mandarin. Ms Hu then turned to Mr Dunn and Mr Saines and told them that Ms Lin was a simple village girl who speaks Chinese like a child and who has been cruelly tricked in both China and Australia. She asked Mr Dunn and Mr Saines to assist Ms Lin. Ultimately, a new travel document was issued with the assistance of the Embassy.
40. Mr Dunn said he also went to the local office of the Department of Immigration with Mr Barnett. At first, Mr Dunn gained the impression that Ms Lin had good prospects of obtaining a visa. He noted that Ms Lin could have kept quiet and not revealed her true identity. Paradoxically, it is her honesty which has lead to all the problems now facing her. Mr Dunn said Ms Lin’s English was improving by the time she left Australia.
41. Mr Dunn said the impact on Mr Barnett if Ms Lin is not granted a visa would be disastrous and heartbreaking. He has been to China on three occasions to visit her. Mr Dunn reiterated strongly the opinion expressed in his statutory declaration dated 22 June 2001 that the difficulties Ms Lin has survived warrant sympathetic consideration and that further unnecessary costs and delay should not be imposed on this deserving couple.
Lin Ming (the Visa Applicant)
42. Ms Lin said she is living at her family home with her mother, her brother, her brother’s two children and her younger son. Her older son is in the custody of her husband and living with his paternal grandparents in another province.
43. Ms Lin said her former husband was a businessman and was always away working. They were married when she was very young. After a while, she realised he was spending his time with other women and in some years he would only return home once or twice a year. After the birth of her first son, Ms Lin had a number of abortions: either brought about by taking medicine orally or, in one case, involving an operation. Every three months, she was required to go for a check up and if she was found to be pregnant, she had to have an abortion. Ms Lin believes this is government persecution as was the forcible sterilisation which was performed on her after the birth of her second son. The abortions were compulsory and if she had not complied she would have been jailed and her property confiscated.
44. Ms Lin said in her village, if the first child is a girl, a woman can have another child after five years. Ms Lin said before the birth of her second child, she was treated harshly by the local authorities. Her second son was born by caesarean section in hospital and immediately afterwards she was sterilised by way of a tubal ligation. She could feel the pain of the operation even though she was told she had been given an anaesthetic. After the birth of her second child and when she went to register him, Ms Lin was fined just over 20,000 yuan which was paid by her husband. Because he was a businessman, he could afford to pay the fine which might have been difficult for an ordinary working person. After their divorce, she continued to be concerned that she might have to pay extra school fees for her younger son because he was a second child.
45. Ms Lin said after the birth of her second child, she and her husband began arguing and these arguments went on for over a year before they finally split up. She found letters from his other women in his luggage. He told her that he regretted marrying her and that other women were willing to marry him. Ultimately, they decided to split up. Before this time, she had hoped for a reconciliation with her husband because it was considered shameful for a woman to be divorced. However he continued to be unkind and unfriendly.
46. During the divorce proceedings, her husband promised to support her and their second child but since there was no love between them, she did not think there was any point in pursuing this. After the divorce, she and her younger son returned to live with her mother’s family. Ms Lin said she had previously lived with her husband’s family in a different village about five to six minutes by car or bus from her family’s home. Both places are reasonably close to Fuqing City. Her family home is about a two and a half hour journey to Fuzhou, the provincial capital of Fujian Province.
47. Ms Lin said she was in a bad shape after the divorce because of the shame of returning home as a young single woman. Ms Lin said she felt an outcast in her home village and that her family expected her to remarry. She tried to support herself and her child but, without an education and living in a village, it was very hard to find employment. She found a job in a restaurant washing dishes for about 300 yuan a month but this was not enough for their support. She was crying all the time and very worried. She continued to work there for a while until she was laid off. She therefore decided to return to work on her father’s land to grow some produce and she did housework at home and looked after her brother’s children.
48. Ms Lin said following the emotional upset of her divorce and because of her financial difficulties, she was keen to have a change of scene. One day a travelling salesman came to her family’s home selling massage equipment. In conversation, they were discussing the possibility of going overseas to earn a living. She was therefore interested when the man, whose name was Zhang Bo said this was possible and he could assist her. She thought if she could work for a time overseas and save money, this would make it easier for her and her child in China. She therefore asked Zhang Bo what she should do. He told her that it was a very simple matter of her supplying him with some passport-sized photographs and that he would do everything else. He said “if I can get you out of the country, you can pay me. If not, it will not cost you anything”.. So she gave him some passport photographs left over from when she applied for an identity card and he gave her a pager number through which he could be contacted. She did not have to sign any documents. From what he said, Ms Lin thought it would be easy to secure a job overseas.
49. Zhang Bo told Ms Lin that it would cost 250,000 yuan to obtain all the documents and to get her to Australia. However, on arrival in Australia she would be responsible for all her other expenses. He said she would be entitled to residence there and she could pick from plenty of jobs available. It would take a while to make the necessary arrangements and he would call her when it was time to get ready. She would need to pay him about 60,000 yuan on receipt of the documents, with the remainder of the money payable when she arrived in Australia. Zhang Bo assured her that she could save enough in a year to repay the debt and from then onwards she would be saving for her and her son’s future.
50. Ms Lin said she was ill-educated and knew nothing about how to obtain a passport. She did not inquire at the local Public Security Bureau about the cost of obtaining a passport because she did not know how to go about doing this. Zhang Bo told her that the cost of obtaining the various documents varied according to the country to which a person intended going. In cross-examination, Ms Lin said she was not then aware of people obtaining false passports to travel overseas. She did know one person who had migrated to Australia, had become a permanent resident and had been there for over ten years. It was much easier to get someone else to make the arrangements for her and she was unaware of what costs were involved. She has never been to Beijing. Ms Lin is now aware that there is a passport office in Fuqing City, not far from where she lives, because Mr Barnett took her there on one of his visits and this is where her current passport was issued. Her husband showed her how to obtain a passport and this was the first occasion on which she signed an application for a passport.
51. Zhang Bo warned her to get ready about a month before she was due to leave, and told her that after she had collected her passport and ticket from him at Shandong, she would be going directly to the airport in Shanghai from where she would be flying to Australia. When Zhang Bo contacted Ms Lin again, he told her to go to a hotel in Shandong where he would meet her and give her the documents. She travelled to the hotel by train which took approximately one day. He had advised her to take her luggage with her because, having received her passport, she would be flying out soon afterwards. Upon meeting Zhang Bo, when he handed her a passport, she found it had her photograph in it but all the other details were not hers. The passport was in the name of Yuan Liang Ying. Ms Lin said that she was very angry but Zhang Bo said such details were secondary and not important and he guaranteed that the passport would get her to Sydney and when she was there she did not need to worry about it. Having reassured her, Zhang Bo asked her to hand the passport back to him and he then accompanied her to Shanghai from where she departed. She handed the initial payment, of between 30,000 and 50,000 yuan, to Zhang Bo in exchange for the documents. She left the rest of the money with her younger brother in China with instructions that he should only give the money to Zhang Bo when she arrived safely in Australia and telephoned him, authorising him to pay Zhang Bo.
52. On the day after meeting Zhang Bo and receiving the documents, Ms Lin travelled to Shanghai Airport where she stayed the night and then flew out the next day. She arrived in Australia without incident and, after her arrival, phoned her brother authorising him to pay Zhang Bo the rest of the money.
53. Ms Lin said she borrowed the 250,000 yuan (about Aus$50,000) from relatives and friends (T p83), some of whom in turn had borrowed money from their banks for which they had given security. Ms Lin said she borrowed a little from each person and did not tell them the total that she required although she did tell them that she was planning to go overseas. She said as an ordinary worker, there would be no way of saving a sum as large as 250,000 yuan. However, as a business person, it might be possible to save such a sum in a year or so. In her village, she could not have contemplated saving such a sum in her whole life. From what Zhang Bo told her, she estimated that she would need to stay in Australia for approximately two years: one year to repay the money she had borrowed and another year to save 200,000 yuan for her and her son’s future.
54. On arrival in Australia, Ms Lin said she had approximately US$1,000 to provide for her initial needs. She did not know what the visa in her passport allowed but she did not think that the fact of the passport not being in her name would cause any problems because Zhang Bo had assured her of this. Ms Lin said her mother had agreed to look after her younger son while she was away. At that time, he was just over three years old. Her older son was living with his father and paternal grandparents as is usual following a divorce if there are two children.
55. Ms Lin said when Zhang Bo gave her the passport and other documents before she flew to Australia, he did not tell her how long the visa was valid for. Now, looking back, she realises that she was “really dumb” - she never even looked at the documents and he did not explain them to her. She did not realise that her visa was only valid for one month.
56. Ms Lin was asked about the trip to Australia. She met others on the plane to whom she talked casually. She has never heard of DK Engineering and Investment Pty Limited or of Xu David or Song Shi Guang. She met a person called Yuan Yongnian at the airport whom she sat next to on the flight. Their small talk was about their families and backgrounds. Ms Yuan did not ask her what Ms Lin was doing in Australia but did give her a friend’s telephone number and address in case she was nearby at some stage.
57. On arriving in Sydney, Ms Lin phoned a friend who had lived in the neighbouring village in China. The friend picked her up from the airport and took her to stay with her in overseas student accommodation at Toongabbie in Sydney. The next day, Ms Lin telephoned Yuan Yongnian whom she had met on the plane, and they agreed to meet in front of Central Railway Station. Ms Yuan took her to a friend’s house at Redfern where she and Ms Yuan shared a bed for about two weeks. Ms Lin’s friend, who had picked her up from the airport, helped her get a job in a chicken shop, processing chicken, helping clean up, frying or roasting and doing whatever work was required of her. Ms Lin earned $9 per hour and the rent for the shared bed with Ms Yuan was $35 each per week. Ms Lin said that after she moved from sharing a room with Ms Yuan in Redfern, she and Ms Yuan maintained occasional contact although they did not see each other very much. Ms Lin said she believes Ms Yuan is still in Sydney and working in a restaurant.
58. Ms Lin said she went to school in China for approximately one and a half years finishing at the age of 11 or 12. She started school late because her family was poor and her father worked on the land. At the time that she arrived in Australia, she did not even know the alphabet in English. Her Mandarin was also poor although it is now much better because she has been going to school for the past one and a half years and both her English and her Mandarin have improved. At home, she spoke in the Fujian dialect and could only read a small amount of Mandarin. She did not do any reading at home and could only write her own name and simple characters.
59. Soon after arriving in Sydney, Ms Lin realised that her visa did not permit her to work in Australia. She had not realised this before leaving China. After working for a short time at the chicken shop in Sydney, she had little time left on her visa and so needed to apply for an extension because otherwise she would become “illegal”.. She asked around among people she knew and was given the address of a migration agency in Sussex Street. The agency was called Bestway Global Services although Ms Lin did not recall this. She said she would not have paid attention to their business name. Ms Lin went by herself to their office in Chinatown taking her passport with her. She also thought that they could assist her in obtaining a Tax File Number which, by then, she realised she needed for ongoing employment.
60. While she was at the office, Ms Lin said she spoke to a man and a woman in Mandarin. She was asked whether she had any problems in China and for a document to support her application. She said she had none but asked what other information she should have. Another person in the office had such a document and Ms Lin asked whether she could have one of these. They said “fine”.. This was a document in Chinese about the Falungong movement in China. She has never been a member of that movement and never told anybody at the office that she was. When she said she knew nothing about the movement, the woman in the office said that it did not matter. She was asked to sign the document, a copy of which she was told to keep so that she could give answers about the movement if she was asked about it. She did not understand what a refugee was. She was told that anyone who had problems was a refugee.
61. Ms Lin could not remember the names of the man and woman at the agency, nor their roles. She left her passport with them and arranged to collect it a few days later when they had completed an application for her, which they told her was for the extension of her visa. When she went back a few days later, she paid the agency about $400 for which they gave her a receipt although, unfortunately, she did not keep this. She signed a few sheets of paper but she did not know what was in them. She could not read the forms. She cannot remember how many forms she signed – they showed her where to sign and she just signed. The name on her passport was used in the forms – that of Yuan Liang Ying.
62. Having signed the forms, she collected her passport and left. At that time, Ms Lin did not have a fixed address and said she did not give the migration agent an address. This was fixed up by the agent and she cannot remember living at the Wentworthville address stated on the application. She did not herself take any forms to the Department. The agent did tell her that the application was not likely to succeed and that it was merely buying time for a longer stay. On that second visit to the agency, she was told that they would notify her of the outcome of the application. They did this, telling her that the application had been refused and that she either had to return home to China or appeal - otherwise she would become illegal. She was advised that in order to appeal, she would to pay them more money. She did not ever receive a copy of the letter from the Department notifying her of the refusal. Ms Lin said she did not want to seek further help from these agents and looked for another person to assist her.
63. Ms Lin said she phoned her younger brother in China and told him that things were difficult for her. He said he knew of a friend in Melbourne who could assist her and he gave Ms Lin the friend’s telephone number. She rang that person, Yu Jian Za, who already knew something of her story through a Chinese contact of her brother’s. He claimed to be a migration agent and said he could assist her with a visa application. He said he was very experienced in dealing with such matters. When Ms Lin told him what had happened, Mr Yu told her that she was a fool and that he had a better way of helping her. He was going to be in Sydney in a few days’ time and so they arranged to meet outside the Bank of China in Chinatown. Having met, they went to a café nearby to talk and she showed him her passport.
64. Mr Yu offered to help her try and resolve her present situation but said that he would need to charge her Aus$20,000 and that this was an amount that he was charging her as a friend. Normally he would charge a person more than this. She told him that she did not have this sort of money so he agreed that she could pay him gradually in instalments and asked for a payment of $2,000 up front. Ms Lin only had $700 or $800 in total at that time so she gave him $600. He took the $600 and her passport and said he would contact her when he was next in Sydney.
65. Ms Lin said nearly two months later, Mr Yu phoned her and said he was coming to Sydney again and would meet her as before in front of the Bank of China in Chinatown. She agreed to give him a further $1,100 and he said he would give her a letter to carry around with her in case she was stopped by the police. When they met, Ms Lin gave him the $1,100 and he returned her passport and gave her a letter to keep with her as he had promised. He said that if the police ever stopped her, this letter would mean that she was safe. She was so excited and happy to receive this and even though she could not read what the letter said, she treasured it. Ms Lin said at this time she was already working in Canberra. She started work there in about March or April 2000. She did not get anyone to read the letter for her, but kept it in a safe place because she was afraid of losing it. She trusted Mr Yu and had no reason to believe that he would cheat her. Ms Lin said she did not sign any forms and assumed that if this was required, he would ask her to do so. She thought that everything he proposed was proper and legal. He told her that the money he required was needed for fees and that he was helping her as a special favour and would not be making any money out of it himself.
66. Ms Lin said she never saw Mr Yu again. He had given her his telephone number (his home number was 03-9793-9659 and his mobile number was 0415‑309-329) and she phoned him. He said her application would take a while and when he had news he would let her know. After this conversation, she was unable to speak to him on either his home or mobile number. If she did get through to him, when he heard her voice he would hang up. Ms Lin said she did not know whether Mr Yu was an Australian citizen although she was aware that he had been in Australia for over ten years. She also did not know of Mr Boden of Starnet Legal who was the person mentioned on the piece of paper that she was handed by Mr Yu (T11). She said she never went to Melbourne while she was in Australia and never met a Mr Boden.
67. Ms Lin said she never thought of going to the Department to make inquiries directly herself. She did not know how to go about such things. She was not so much concerned about the use of the false name, but was worried about being detained by the police because she was not clear about her status in Australia - about whether she was “legal” or not – and because she did not have permission to work. She thought if she was detained by the police, she would be sent back to China.
68. Ms Lin said she is not sure whether she ever had a Tax File Number because, when she was working in Canberra, her boss always deducted tax from her pay and she never got a tax refund. Ms Lin said she had lost her job at the chicken shop in Sydney because she was unable to provide a Tax File Number. When this happened, she kept wandering around looking for work and felt very depressed and was crying. She met a woman at Central Railway Station, whom she thinks was from Hong Kong, who said there was work available in Canberra and that food and board would be provided. The woman told her that they were looking for women in the 30 to 40 years age bracket and she asked Ms Lin for her passport. Ms Lin refused. She was undecided as to what to do, so she exchanged telephone numbers with the woman.
69. Next day, Ms Lin phoned the woman and said she would be interested in working in Canberra provided she did not have to hand over her passport. It was arranged that she would meet the boss of the Canberra business outside the Bank of China in Chinatown and that he would drive her to Canberra. His name was Ken and he spoke Mandarin although she is not sure of what Asian race he was. He took her to his shop in Canberra called Number 77. This was a brothel and she had to work as a “working girl” and was paid for what she did. Ms Lin said if she had been able to repay the debt in China, she would never have undertaken such work. She decided to pay off the debt and, as soon as she had paid it off, she would stop that work. But she found the work very hard and, because of her temperament, most of the customers “did not go for her” so she only made a little more money than she did at the chicken shop in Sydney.
70. Ms Lin said she knew that when she went to Canberra the work was that of a “working girl”.. However, it took her a long time to get used to it and she never liked the work and only did it as a last resort to feed herself and her child. Her boss told her that if she was to stay, then she must do the work. Another girl spoke up for her and initially she was allowed to do cleaning jobs until she got used to it and then she would fill in if the other girls were busy. Ms Lin said her boss did not threaten her except to say that he could not feed her if she was not working. She only stayed there as a last resort and because she was at the end of her tether. She also tried working for a few days in another brothel called “Pretty Women”, having told her boss at Number 77 that she was taking two days leave. But she went back to work at Number 77, which was where she was arrested.
71. Ms Lin said she has not told her mother that she worked in a brothel because she would be broken-hearted. Prostitution is illegal in China although she does not know the penalty.
72. Ms Lin said she met Mr Barnett at a restaurant not long after she came to Canberra. She had a friend called Katie whom she had met through another worker at the brothel called Grace. Katie’s boyfriend was a friend of Mr Barnett’s and Katie invited Ms Lin to join them for dinner at a restaurant, when Mr Barnett was also present. Ms Lin said at first she and Mr Barnett were friends, but later they fell in love and she moved in with Mr Barnett at his house in Kaleen. Thereafter, she only worked at the brothel two or three days a week and he would take her there by car.
73. Ms Lin said the only occasion brothels were raided during her time in Canberra was that one occasion when she was at Number 77 when she was arrested and detained. She said a team of police came and told them all to stay still and then each person was taken one by one into a room where they were body searched. They found nothing on her. They were then taken back to the lounge and told to stay there and each person was separately questioned. They asked Ms Lin for her passport. She told them that she did not have the passport with her because it was at Mr Barnett’s house. She kept her passport there because it was safer. They arrested her because she was unable to answer their questions and took her somewhere where she was locked up. She is not clear where.
74. Ms Lin said she was held in two different places. In the first place, there were no overnight facilities. While there, she was questioned by a man and a woman whose names she does not know, with the assistance of an interpreter from the Translation and Interpreting Service (TIS). The woman was of Asian appearance although the man was not and they did not seem to be police because they were called in by the police. They asked her general questions including about when she arrived in Australia. Ms Lin does not know where the interview took place but thinks the interviewers probably took notes. After this, she was taken to a second place where she was locked up. Eventually, some time later, Mr Barnett came and took her home with him. She cannot remember if she was re-interviewed with Mr Barnett before he took her home. Mr Barnett paid a surety of $10,000 to secure her release. Thereafter, she had to report once a week to Mr Saines at the Department and sign a document.
75. Ms Lin was asked about her first interview with Departmental officers on 26 February 2001. She said her Mandarin was not good then and she is not confident that she understood everything that was asked of her. She was very frightened at the time and worried that she would be sent back to China. She denied that she told Mr Saines that she met Mr Barnett at work. This was not the case: she met Mr Barnett at the restaurant. However, she trusted Mr Saines and, later, he took her to the Chinese Embassy to make arrangements for her to obtain a travel document.
76. After Mr Barnett took her home, she told him everything including her real name. She said she did not tell Mr Saines her real name at her first interview with him on 26 February 2001, because she did not know it mattered. She did not understand all of the questions asked of her. She later revealed her real name because she was worried that she might be sent back to the place stated in the false passport which was not her real home. When she first told Departmental officers her real name, they did not seem to believe her. She therefore arranged for a copy of her Identity Card to be faxed from China and Ms Le provided this to the Department.
77. Ms Lin said she did not marry Mr Barnett in order to stay in Australia. They were in love and from early on in their relationship they planned to get married because they were inseparable. After they married and she left Australia, she hoped that if she was not allowed to return to Australia, Mr Barnett might be able to go and live with her in China.
78. Ms Lin said that while she was in detention, she phoned her family in China using a phone card. She spoke to her younger brother who told her that people who returned to China without a passport would be jailed or could incur a penalty of between 5,000 and 10,000 yuan. This is why she wanted to obtain a proper travel document from the Chinese Embassy in Canberra to enable her to travel home. Ms Lin said that when she went to the Chinese Embassy, she was very distressed and crying. She asked the lady there to prepare a written document so that she could avoid trouble on her return to China and because she was afraid she would be arrested and punished. Ms Lin said she spoke Mandarin with this lady. She told her of the sort of work she was doing in Canberra. The lady believed her story and told her not to make the same mistake again. She was accompanied to the Embassy by Mr Saines and Mr Barnett’s friend, Mr Dunn.
79. Ms Lin said her second visit to the Embassy was to collect the travel document. It took a while for the Embassy to obtain a new travel document for Ms Lin because they had to check her identity. She could not recall whether she also saw the lady at the Embassy on this second visit. The document she was given was supposed to be handed in on her arrival in China and inside the document there was a statement favourable to her. Ms Lin said she ultimately handed in this document when she applied for her current Chinese passport. Ms Lin could not recall having been asked to give evidence about her experiences to the Australian government authorities.
80. Ms Lin said the person whose details appeared in her false passport, Yuan Liang Ying, was married. Ms Lin said she was in love with Mr Barnett from soon after they met but she had not told him of her true identity or of her previous marriage until after she was detained. When Mr Barnett raised the question of marriage with her, she said she told him she had many problems. Mr Barnett was separated from his wife at that time and told her it would require one year before he could obtain a divorce. By contrast, she had been divorced on 20 September 1999, before she left to travel to Australia.
81. Ms Lin said her marriage to Mr Barnett took place at Mr Barnett’s home in Kaleen. Between 20 and 30 people attended the wedding including Mr Barnett’s mother, younger brother and children, and his son. Mr Barnett’s family did not know of her work and she got on well with them and had visited Mr Barnett’s mother in Wollongong.
82. Ms Lin said she does not recall the name of the migration agent to whom Mr Barnett took her for advice in Chinatown except that her office was in a building in Dixon Street. A woman at the agency told her to reapply and to send a letter to the Minister for Immigration. She paid this woman $200 and she promised she would do her best to help Ms Lin.
83. Ms Lin recalled her interview at the Australian Consulate in Guangzhou on 18 October 2001. She was accompanied to the interview by Mr Barnett but was interviewed without Mr Barnett being present by Kerry McKinnon and a lady interpreter and an Asian looking man who she now knows to be Mr Lai. Ms Lin spoke in Mandarin. She had difficulty in understanding some questions. Sometimes, she asked the interpreter to repeat some things. On other occasions, Ms Lin guessed at what was being said to her in order to provide an answer. The Asian man asked very few questions. Ms Lin said they did not believe her and suggested that she was not telling the truth about the passport. She was feeling panicky and crying. Ms Lin said she could not tell lies and was not sure what to do when they accused her of this. They said it was impossible for her not to know who obtained the passport for her and the person’s address and telephone number. She explained about Zhang Bo and how she had paid him 250,000 yuan.
84. Ms Lin said she could not recall if they asked why she had not obtained a passport in her own name. If she had known how to obtain a passport at that time, she would have done it herself. Ms Lin could not recall whether Mr Lai asked her about whether she had been to Beijing, and she was not shown her visa application forms. It was mostly Ms McKinnon who asked the questions. Ms Lin said she was worried and frightened that they did not believe her. At one point, Ms McKinnon said “if you do not tell the truth, I will finish the interview”.. She was very unfriendly and Ms Lin felt very uncomfortable and cried a lot.
85. After Ms Lin had been interviewed, Mr Barnett was interviewed separately and then they were both interviewed together. Ms Lin said she was crying and Mr Barnett did most of the talking. She cannot remember what was said.
86. Ms Lin said if her visa is not granted she is not sure what she will do. She said it will be very cruel to her and her husband if a visa is not granted. If Mr Barnett can come and live in China, then that is fine with her, but she does not know whether the Chinese Government would permit this. He has been to visit her on three occasions when they have spent time together and gone on visits. Mr Barnett has met her son and they get on well together.
87. Ms Lin said she now advises people who may be going overseas not to make the mistake she made and to go through the proper channels and pay $200 to obtain a passport from Fuqing City. She apologises to the Australian Government for using a false passport. Just to think about her experience in dealing with Zhang Bo is very painful for her.
88. Ms Lin said her Mandarin is now much better than when she came to Australia and when she had the interview with Ms McKinnon. Ms Lin is having lessons in English which are conducted in Mandarin and so, indirectly, her Mandarin is also improving. Ms Lin said she had difficulty remembering all the events because she does not have the advantage of a diary or papers in which the events were recorded.
89. Ms Lin said she did not recall what was stated in the application for Ministerial intervention made by Ms Le on her behalf. She was worried about what might happen to her if she returned to China because prostitution is illegal in China. However, she did not think that the authorities would take her son away or sell him. Nevertheless, she did think it might be very difficult for him. Ms Lin said she did not exaggerate her situation to Ms Le because she did not know what might happen to her.
90. Ms Lin said she nearly fainted when she saw the article in the Canberra Times on 30 June 2001 which stated she had been arrested while working in a brothel. Anyone knowing her in Canberra would have realised who it was and Ms Lin was worried that her family and the people in her community in China might find out. This might have resulted in her family and her son being badly affected if it came to be known in the community. Ms Lin said neither she nor Mr Barnett told the Canberra Times reporter who came to her house that she worked in a brothel. Nor did she authorise any Departmental spokesperson to reveal this. Ms Lin said she wanted to die when she saw the newspaper article – it was a heavy blow to her. Her girlfriend who did not know she was working in a brothel saw another article about this in the Chinese newspaper and contacted her. Other friends also phoned. She was very scared and worried.
91. However, Ms Lin said since returning to China, nobody has questioned her about the work she did in Australia and she has not been identified as a prostitute in her village. Her younger son, who is healthy and well, is attending kindergarten and Mr Barnett is paying the fees. She has to pay extra fees because a son does not belong in a mother’s school area.
Dr Jian Xin Wei
92. Dr Jian provided a statement dated 3 December 2002 (A3). Dr Jian was born on 9 August 1953. He left China at the end of 1986 and has lived in Australia for nearly 17 years. He is a nuclear physicist and is currently employed by the Australian Defence Force Academy in the ACT.
93. Dr Jian said he is aware that until recently the acquisition of photo-substituted passports was a common scam in China. Unscrupulous people preyed on unsophisticated people like Ms Lin tricking them into believing they were acquiring genuine passports and visas in order to enter Australia legally and work. It was very difficult for a Chinese person to obtain a passport. It was only last year that the Government announced that people could freely apply for passports. Nevertheless, in practice it is still very difficult.. Although 200 yuan is the official fee for obtaining a passport, a person must first have approval from various authorities including, in the countryside, their village leader and then from each level of government. Moreover, the person must be able to give a good reason for needing a passport and a letter from overseas inviting them to visit. In Dr Jian’s opinion, in 1999 it would have been virtually impossible for an ordinary person to obtain a passport. However, if you are prepared to bribe officials anything can be done. For village people, it was only possible to obtain a passport through the black market.
94. Dr Jian said his experience in obtaining a passport before he left China in 1986 was of the need to get approval and supporting documentation at every level of his university and of government. The whole process took a few months. Recently, when his sister wanted to visit him in Australia, her application for a passport was rejected and no reason was given. He said government policy on such matters is sometimes more important than the actual law itself.
95. Dr Jian was asked to examine Ms Lin’s family registration book. He said such books are renewed every few years. Local officials confirm who the members of a family are and a new registration book is issued. Thus, the fact that Ms Lin’s family registration book was issued on 23 April 2001, when she was in Australia, is not significant. Local officials would have known of her family and a new registration book (R1) would have been issued without her actually being physically present. With regard to the meaning of the entry in her book recording her education as “elementary/secondary”, Dr Jian said he was unable to judge the exact level of her education from this because education levels vary widely from place to place and education in the countryside can be of a very low level. The description “peasant” is generally given to a person who works in the countryside on the land.
96. Dr Jian was asked about the location of Ms Lin’s village. While he acknowledged that he is not familiar with Ms Lin’s region of China, he said the population of most cities is regarded as including that of surrounding rural areas. From Ms Lin’s address, it would seem that she lives in a village which, because of poor transport, is likely to be fairly remote. He noted how in that area, the countryside becomes mountainous quite close to the coast. Dr Jian said in his opinion, it would be very difficult for Mr Barnett to live with his wife in China.
Brian Saines
97. Mr Saines is a Compliance Officer with the Department of Immigration. He has held this type of position since 1992, including four and a half years in Canberra. Mr Saines provided an affidavit dated 20 December 2002 (R3). He said his role involved seeking out those who may have breached their visa conditions and regularising their status.
98. Mr Saines said the AFP arrested Ms Lin at the brothel on a Sunday and took her to the AFP watch-house where she was held initially. He first met Ms Lin the day after she was detained – on 26 February 2001 (T12 p81). He conducted the interview using a telephone interpreter from TIS and believes that the language involved was Mandarin. He could not recall Ms Lin or the interpreter having communication difficulties during the course of the interview, but he said that he could not rule it out. Neither could he recall the questions put and the answers received. He only recalls the interview in a general sense. He thinks Ms Lin brought her passport to the interview and that it looked like a genuine document. After Ms Lin revealed that the passport had not been issued in her real name, he referred her passport to the document fraud section of the Department – to Mr Trevor Alt – for examination. Mr Saines was advised that the document was a genuine, officially issued passport which had not been tampered with in any way and which was not a photo-substituted passport.
99. Mr Saines said his second interview with Ms Lin probably took place on 16 March 2001, although he acknowledged that he had not dated his notes from that interview (T20 p117).
100. Mr Saines said that he attended the Chinese Embassy with Ms Lin, accompanied by Mr Dunn, for her to obtain a travel document to enable her to leave Australia. At the Embassy, they met Ms Hu Fugen, the First Secretary (Consular). Ms Lin and Ms Hu spoke together in what Mr Saines assumed was Mandarin. He was not aware of their having any communication difficulties. He recalls Ms Lin saying that she had been represented by a migration agent who had taken advantage of her. After speaking with Ms Lin, Ms Hu seemed to accept Ms Lin’s true identity and that she was seeking her identification papers from China to confirm this. These identification papers were subsequently provided to Ms Hu (T19). Mr Saines said Ms Hu told him that she thought unscrupulous people had taken advantage of Ms Lin, both in China and Australia.
101. Mr Saines acknowledged that he has no experience of the issuing of subclass 456 temporary business visas. However, in order to obtain such a visa, a person would be required to provide documentary evidence in relation to their business activities. Mr Saines was asked about the conditions to which Ms Lin’s original subclass 456 visa was subject (T6 p66). He said condition 8012 provides that:
the holder must not engage in work in Australia that might otherwise be carried out by an Australian permanent resident.
Thus, the condition does not permit the holder to work in Australia although they may observe business and manufacturing activities (R3). Mr Saines said Ms Lin’s visa was not subject to condition 8503 which bars a person from applying for a substantive visa. Her initial visa was valid until 2 February 2000 and she could have applied for an extension of this. Mr Saines acknowledged that those issued with visas do not always understand the conditions to which they are subject.
102. Mr Saines said that because the passport and visa were not in Ms Lin’s real name, she became an unlawful non-citizen on leaving Sydney Airport. In this situation, it is the responsibility of the person to make themselves known to the Department and inform the Department that the passport has been issued in a false name with a view to obtaining a visa in the person’s real name in order to rectify this. Formally, such a person must initially be arrested but a bridging visa can then be issued.
103. Mr Saines said Leonie Anderson was his supervisor in the Compliance Section in Canberra. She is probably the person of Asian appearance to whom Ms Lin refers who questioned Ms Lin at the Police Station after her arrest and on the day before he interviewed her. Mr Saines was referred to a series of email messages (A5) concerning Ms Lin involving Kerry McKinnon in Guangzhou, Leonie Anderson, Lara Dudok, another compliance officer, and Mr Saines. Mr Saines said he assumed Ms McKinnon was considering the refusal of a spouse visa to Ms Lin on the basis of bad character.
104. Mr Saines said Mr Barnett usually accompanied Ms Lin to his office and it was Mr Barnett who paid the surety of $10,000 to secure her release. Ms Lin complied with the terms of her bridging visas, except that she did not at first advise him of her real name. He confirmed that she was living in a de facto relationship with Mr Barnett and that they were later married. Mr Saines acknowledged that the record for his first interview with Ms Lin on 26 February 2001 (T12) does not show that he asked Ms Lin to confirm her real name. He said the forms had now been amended so that the person conducting the interview specifically asks the interviewee their real name. Mr Saines issued the bridging visa to Ms Lin at the conclusion of the interview (T p89). He did so on the basis of what Ms Lin told him and payment of the surety of $10,000 by Mr Barnett.
105. Mr Saines said that s 48 of the Act bars a person who has made an onshore visa application from making another such application. That bar is lifted when the person goes offshore. However, s 48B permits a person to request permission to reapply for a protection visa onshore.
106. Mr Saines said he is aware of the article which appeared in the Canberra Times about Ms Lin and Mr Barnett. He recalls that Mr Barnett was angry about revelations that Ms Lin worked in the sex industry, although such work is not in itself an offence in the ACT.
107. Mr Saines recalled seeing the letter which Ms Lin produced from Starnet Legal. He said Ms Lin probably handed the letter to him on 26 February 2001 and it was probably then placed on the departmental file. His interview notes for 26 February 2001 refer to the letter (T85). Mr Saines said it is not departmental practice to keep a record of the TIS interpreter used for an interview. It is his practice to make notes of the interview as the interview progresses and he gives the interviewee the notes to read before the person signs the record at the conclusion of the interview. This was probably done on 26 February 2001, but he cannot at this stage recall this.
Lai Chung Chiu
108. Mr Lai provided an undated witness statement faxed to the Australian Government Solicitor on 30 May 2003 (R6). He has worked for the Department since 1991 and is currently on long service leave prior to his retirement. His last working day was 2 February 2003. Mr Lai said he worked as an investigator in Canberra and Melbourne and was then posted to Guangzhou in January 2000 where he worked until 2 February 2003. As an investigator, he investigated immigration malpractice including false documents, contrived marriages etc. In Guangzhou he was Vice-Consul at the Australian Consulate and a Senior Migration Officer (Compliance). He was responsible for investigating immigration malpractice in the Guangzhou district and also for providing training to Chinese officials about Australian immigration documents. He dealt with several malpractice cases per week and frequently conducted interviews. If he identified false documents, he would liaise with Chinese officials about the possibility of prosecution.
109. Mr Lai said he was recruited by the Department of Immigration because of his experience in the Hong Kong Police. Mr Lai was born and brought up in Hong Kong where he joined the Hong Kong Police Force in which he served before migrating to Australia in 1991. His first language is Chung Chu, a dialect of Cantonese. Mandarin is not his mother tongue and he only learnt this whilst in Australia. Nevertheless, he is “pretty fluent” in Mandarin. However, when conducting a formal interview he would conduct the interview in English with the assistance of an interpreter. Ms McKinnon asked him to interview Ms Lin in order to find out more about the false passport which she used to enter Australia.
110. Mr Lai said he interviewed Ms Lin on 17 October 2001 with the assistance of a Mandarin interpreter after the conclusion of Kerry McKinnon’s interview with Ms Lin. Ms McKinnon was not present during his interview with Ms Lin at which the only persons present were Mr Lai, his interpreter and Ms Lin. Mr Lai could not recall Mr Barnett being present during the interview. He said if this had been the case, he would have recorded this in his IRIS note. Mr Lai said his recollection of what occurred is not very good and he is relying on his entry on IRIS. It was not a long interview – probably no longer than half an hour. He cannot now recall what he told Ms McKinnon about the interview. Mr Lai was referred to his IRIS note on the interview which was an attachment to his statement (R6). Mr Lai said if Ms Lin had not been comfortable with speaking in Mandarin, he would have made a note of this.
111. Mr Lai did not consider Ms Lin’s claim to have purchased her passport for 250,000 yuan to be credible, when the actual cost of obtaining a passport is only 200 yuan. He thought the process for obtaining a passport was well known in the community through information provided in the media. The Chinese Government announced a new policy on the issue of passports in Guangdong Province on 2 November 2002. However, Mr Lai does not know whether this policy was operating in Fujian Province. He also does not know whether, in 1999, people were required to have exit permits in order to travel overseas and whether a local woman could obtain such a permit easily. In 1999, it would have been possible for a person to apply for a passport, although they would have needed to present supporting documents, including a letter from their work unit and approval from the local Public Security Bureau office.
112. Mr Lai said he had seen a lot of photo-substituted passports but not one like that obtained by Ms Lin with the correct photo of the person, but using the details of another person. Mr Lai noted that Ms Lin lives in a country area of Fuqing City, about a half hour drive from Fuzhou in Fujian Province. Fujian Province is notorious for the use of false passports and for people leaving China either lawfully or unlawfully in order to travel and work overseas. False passports have been used for travel to the USA, Canada, Australia, United Kingdom and other European countries.
113. Mr Lai said he has no recollection of seeing the false passport obtained by Ms Lin. Neither did he recall asking Ms Lin about the visa in her passport. As long as the information in the visa application is legitimate, it is not difficult to get a visa to visit Australia. Mr Lai is not aware of the kind of visa issued to Ms Lin. He did not refer Ms Lin’s case to the Chinese Police for prosecution because he did not have sufficient details of the person who had supplied the false passport and, in particular, his address or telephone number.
114. In cross-examination, Mr Lai acknowledged that his note on IRIS stated that Ms Lin’s passport was a photo-substituted passport, ie one where the original photograph was removed and another substituted. This was not correct, but the fact that the passport was not a photo-substituted passport does not change his view of Ms Lin’s credibility. It was the large amount of money which she claimed to have paid for the passport and the fact that she herself did not obtain the passport that led him to disbelieve her. He acknowledged that he thought that Ms Lin paid 250,000 yuan for the passport alone: he had not realised that the money she paid also included the cost of obtaining the visa and the flight to Australia. Mr Lai acknowledged while he did not believe Ms Lin, her story could be true.
Teng Jin
115. Ms Teng provided a statutory declaration dated 18 December 2002 (R8). Ms Teng said she had been a migration agent since 1997 working with Bestway Global Services, with an office located at Sussex Street until July 2001 and since then located at George Street. Ms Teng migrated to Australia from China in 1988 and could speak English on arrival. Initially, she worked at the St George Hospital. She has been a migration agent since 1997.
116. Ms Teng said she kept a file for Ms Lin whom she knew as Yuan Liang Ying. Her files contain application forms together with a statement in Chinese which Ms Lin signed and an English translation. Ms Teng said she recognises Ms Lin’s face from the passport-sized photographs in her file which were submitted with the protection visa application, but otherwise remembers very little of the matter.
117. Ms Teng said Ms Lin came to her office and asked for assistance in lodging an application for a refugee visa. She said that Ms Lin was accompanied by a friend. Ms Teng advised her that there was no hope of a successful application. However, if she wanted to proceed, she must sign a Clause 2.17(b) Notice, which stated that Ms Teng explained to Ms Lin that in her opinion, Ms Lin’s protection visa application had no prospects of success (R9). The Notice was witnessed by Ms Lin’s friend. Ms Teng was unable to remember if Ms Lin had any documents with her. She said Ms Lin gave her a statement in Chinese but could not recall when and if this occurred on another occasion a few days later. Normally, if a client provides a statement, Ms Teng will check the statement and then get the client to sign her name. Ms Teng denied that she gave Ms Lin the statement.
118. The application for a protection visa lodged on behalf of Ms Lin was completed in Ms Teng’s handwriting. Ms Teng said Ms Lin gave her the information necessary to complete the form, although she cannot remember when. Ms Teng asked Ms Lin to sign the application in front of her, having first explained the contents of the protection visa application. Ms Teng read Ms Lin the applicant’s declaration at question 17 of the form before Ms Lin signed. Ms Teng said the interpreter’s declaration in question 18 was not completed because Ms Teng spoke to Ms Lin in Mandarin.
119. Ms Teng said the statement in English which sets out Ms Lin’s protection visa claims was prepared either by Ms Teng or someone in her office based on the statement in Chinese supplied by Ms Lin. Ms Teng did not provide the original document in Chinese to the Department with the protection visa application. She said the Department only needed the English version.
120. Ms Teng said when she lodges a protection visa application, she takes the original passport to the Departmental office for inspection and a copy for the Department to keep. Ms Teng would then return the passport to the applicant at their next meeting. Ms Teng said that Ms Lin told her that the Wentworthville address stated at question 12 was her home address. When Ms Teng received notification of the refusal of the application, she would have phoned Ms Lin on the mobile telephone number stated in the application to make sure that Ms Lin had received the refusal letter. Ms Teng said she cannot remember how much she charged Ms Lin for her services. Her receipt for Ms Lin’s payment would be with her company’s tax returns. She does not have a copy in the file. Ms Teng says she does not normally provide assistance with applying for a Medicare card or a Tax File Number, but she might have done so if asked.
121. With regard to the dates on the forms, Ms Teng confirmed that the Authority to Act was dated 18 January 2000, the protection visa application was signed on 25 January 2000, the accompanying statement in English setting out Ms Lin’s claims for protection was signed on 28 January 2000, and the receipt issued by the Department on payment of the fee of $30 was dated 31 January 2000. Ms Teng said she is not aware of any complaint ever having been made against her either to the Department or the Migration Agents Registration Authority.
152. With regard to the exercise of the discretion under s 501(1) and the guidance provided by Direction No 21, Mr Neely contended that Ms Lin’s conduct, involving breaches of Australia’s immigration law, should be regarded as very serious. The Respondent contends that she would repeat such misconduct if it were advantageous to her. The refusal of a visa in such circumstances would act as a deterrent to others and the Australian community would expect that a person who engaged in serious breaches of the law would not be allowed to return to Australia. While recognising the hardship caused to Mr Barnett, Mr Neely submitted that such hardship was outweighed by the primary considerations of the protection and expectations of the Australian community. Moreover, Mr Neely doubted Mr Barnett’s evidence that he was not aware that Ms Lin was in Australia illegally until she was detained, since he must have seen her passport when making inquiries of migration agents on her behalf both in Canberra and Sydney.
Consideration of the Law and Findings
153. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Lin passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).. However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
154. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Ms Lin does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
155. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
156. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. The Tribunal finds, based on Ms Lin’s evidence, that her first marriage to Yang Wen Fang, a businessman, broke down and ended in divorce on 20 September 1999. Ms Lin and Mr Yang had two children, the second being born in breach of China’s “one child policy”. Prior to the birth of her second son, Ms Lin had a number of compulsory abortions and, after the birth of her son, she was compulsory sterilised. Mr Yang paid a fine to enable the registration of their second son so that he could be included in the household registration book, which would in turn enable him to attend school. After Ms Lin’s and Mr Yang’s divorce on 20 September 1999, their older son went to live with Mr Yang and his family and their younger son stayed with Ms Lin. Ms Lin and her younger son now live in her family home in a village near Fuqing City. Ms Lin’s evidence is that her village is in a relatively remote area. Mr Barnett gave evidence that conditions in the village are fairly primitive. There is no mains water and the fields are still ploughed by buffalo. Ms Lin said there is very little employment locally except in subsistence farming.
157. When Ms Lin returned to her village, she felt ashamed because of her divorce and because she was returning home as a young woman. She felt an outcast and that her family expected her to remarry. She had difficulty providing financial support for herself and her younger son. As a result of her emotional situation and her financial difficulties, she was keen for a change of scene and when the possibility of going overseas was suggested to her, she was interested. A travelling salesman, Zhang Bo, told Ms Lin that he could obtain a passport for her and make arrangements for her to travel to Australia where she could work and save to provide for her and her son’s future. His fee for making the necessary arrangements and obtaining a passport for her was 250,000 yuan, a very substantial sum by Chinese standards. The Tribunal accepts Ms Lin’s evidence that she knew nothing about how to obtain a passport or how to make the necessary arrangements to travel overseas in order to secure work and was, therefore, content to leave it to Zhang Bo to make the arrangements.
158. The evidence of other witnesses concerning the issue of passports in China suggests that, at the relevant time, it was difficult to obtain a passport to travel overseas, and the Tribunal accepts that Ms Lin knew nothing of how to go about this and was not aware that obtaining a passport required the payment of a relatively small fee of approximately 200 yuan. Ms Lin signed no forms but, at his request, gave Zhang Bo some passport-sized photographs. It is not clear to the Tribunal if Ms Lin gave any thought to the legality of what she was doing, but she was certainly aware that Zhang Bo must have obtained the passport unlawfully when he eventually handed her the passport and she discovered that while the photograph in the passport was hers, the name and other details were not. Ms Lin met Zhang Bo in Shandong for him to give her the passport and tickets, the arrangement being that she would then travel on to Shanghai from where she would fly to Australia. Thus, Ms Lin was essentially committed by this time, and when Zhang Bo reassured her that the passport would get her to Australia and she would not have any difficulties, she decided to go ahead. The later examination of the passport suggests it was not a photo-substituted passport but a properly issued passport, albeit with false details.
159. Ms Lin flew to Australia from Shanghai arriving on 2 January 2000 on a subclass 456 visitor (temporary business) visa valid for one month. She was met by a friend in Sydney with whom she stayed on her first night in overseas student accommodation at Toongabbie. The next day, Ms Lin telephoned a friend whom she had met on the plane. They agreed to meet at Central Railway Station and Ms Lin subsequently shared a bedroom with the friend at a house in Redfern for about two weeks. She obtained work in a chicken shop.
160. It appears that Ms Lin was not, at first, aware that her visa did not entitle her to work. However, she soon realised that she needed to apply for some sort of extension to her visa in order to avoid becoming “illegal”.. She was given the name of a migration agency in Sussex Street called Bestway Global Services whom she went to see with a view to obtaining an extension of her visa and seeking their assistance in obtaining a Tax File Number, which by then she realised she needed for ongoing employment. The Tribunal accepts that Ms Lin knew nothing about Australia’s immigration law and had no understanding of the different categories of visa. Thus, when Ms Teng of Bestway Global Services completed a protection visa application on her behalf, Ms Lin had no real understanding of what was being done except that this might enable her to stay longer in Australia and work.
161. The Tribunal accepts Ms Lin’s evidence that she did not compose the statement in Chinese about being involved with the Falungong movement and that this was handed to Ms Lin by someone at Bestway Global Services. It is clear Ms Lin has never been to Beijing and knew very little about the Falungong movement. However, this was used by Ms Teng as the basis for the claims of persecution which were included in Ms Lin’s protection visa application. Ms Teng denies any complicity in this. The Tribunal makes no finding as to this, although notes certain irregularities in the way in which Ms Lin’s visa application was completed: for example, the failure to complete question 18 on the application form and the apparent lack of any record of the amount of money Ms Lin was charged for the migration agent’s services. Ms Teng said she had very little recollection of what occurred, but, in the Tribunal’s view, it is likely that someone in that office directed Ms Lin towards a protection visa application and was prepared to include false claims of persecution in that application on Ms Lin’s behalf.
162. Ms Lin’s protection visa application was refused. Although Ms Teng has no recollection of this, it seems likely that she telephoned Ms Lin to tell her the outcome. Ms Lin was obviously distressed by this. Having spoken to her younger brother in China, at his suggestion she contacted a person in Melbourne, Yu Jian Za, who claimed to be a migration agent and said he could help her. Mr Yu and Ms Lin met in Sydney a few days later when Ms Lin paid him $600 as a stage payment for assisting her in obtaining a visa. According to Ms Lin, Mr Yu took her passport and, approximately two months later, when they met again, he returned her passport and gave her a letter from a lawyer, Mr Boden, of Starnet Legal, dated 3 March 2000 (T p80), which Mr Yu said she should carry with her and produce if she was stopped by the police. Ms Lin thought the letter gave her protection in Australia and was happy and relieved to have this. She said she treasured the letter. However, she never saw Mr Yu again. When she tried to telephone him, he would never respond.
163. During the resumed Tribunal hearing on 8 September 2003, there was some discussion between the parties of a further statement from Mr Boden dated 15 August 2003 in which he stated that he did not have any recollection of the person in question attending his office and that he had drafted his affidavit after having discussions with Mr Neely. This statement was not subsequently tendered as an exhibit.
164. Ms Lin lost her job at the chicken shop in Sydney because she was unable to provide a Tax File Number. When wandering around looking for work, she met a woman at Central Railway Station who suggested she obtain employment in a business in Canberra. Ms Lin was desperate and so followed up on this contact, with the result that she went to Canberra and started working in a brothel. The Tribunal accepts that she found this very difficult and hated it.
165. In May 2000, not long after arriving in Canberra, Ms Lin met Mr Barnett when she went out with friends to a restaurant for dinner. Mr Barnett is an electrician who lives in Canberra. He and Ms Lin exchanged telephone numbers and they commenced a relationship, which led to Ms Lin moving in with Mr Barnett in his house in Kaleen about a month later. Mr Barnett said he knew Ms Lin as Yuan Liang Ying, the name in her passport. He knew she was working in a brothel and tried to dissuade her from doing this but she insisted on continuing because of her debt. Mr Barnett’s evidence is that he and Ms Lin thought she was probably in Australia legally as a result of Ms Lin’s attempts to regularise her status but they were concerned about whether she was permitted to work. Mr Barnett approached a migration agent in Civic in Canberra but Ms Lin did not follow up on this. However, Mr Barnett also took her to Sydney on two occasions to see a migration agent in Chinatown, Sino-Pacific Holding Pty Limited, to whom she paid $200. Nothing appears to have come of these consultations.
166. On 25 February 2001, Ms Lin was arrested by the AFP while working at a brothel in Fyshwick. She was detained and taken to the Civic Police Station where she was held until the next day when she was interviewed by a departmental Compliance Officer, Brian Saines. Mr Saines issued Ms Lin with a bridging visa E pending Ms Lin’s departure from Australia on the basis of a surety for $10,000 lodged by Mr Barnett.
167. The Tribunal accepts Ms Lin’s evidence that when she was arrested by the AFP and asked for her name, she responded by asking “which name would you like?” She was told the name in her passport. Therefore, at the interview with Mr Saines, it seems to have been assumed that her name was Yuan. It appears to have been after this first interview that Ms Lin revealed to Ms Le that Yuan was not in fact her real name. Mr Barnett had also not been aware of her real name until this time. Following this revelation, Mr Saines was informed and Ms Lin then took steps to obtain her Identity Card from China in order to confirm her true identity. Having obtained this, it was then necessary for her to obtain a new travel document to enable her to depart Australia and return to China. She therefore attended the Chinese Embassy in Canberra on 21 March 2001 accompanied by Mr Saines and a friend of Mr Barnett’s, Mr Dunn. She was interviewed at the Embassy by Ms Hu Fugen, the First Secretary (Consular). Ms Hu seems to have accepted Ms Lin’s account and assisted with making arrangements for the issue of a new travel document. During this period, Ms Lin was required to report weekly to Mr Saines at the ACT regional office of the Department and he issued Ms Lin with a series of bridging visas while her travel document was being organised.
168. On 9 June 2001, Ms Lin and Mr Barnett were married by a civil celebrant at Mr Barnett’s house in Kaleen in the presence of friends and family. Following their marriage, Ms Lin applied to lodge a spouse visa application onshore. This was refused by letter dated 25 June 2001 (T p151).
169. On 30 June 2001, an article appeared in the Canberra Times (T p203) about Mr Barnett and Ms Lin and her being “forced to return to China”. The article mentioned that Ms Lin had been arrested in a brothel in the ACT and later handed over to immigration officials. When Ms Lin became aware of this article, she was very concerned that if Chinese Government officials became aware of her having worked in a brothel, she would be punished on her return to China.
170. On 2 July 2001, Ms Le wrote to the Respondent requesting Ministerial intervention on humanitarian grounds (S p2). The Minister refused this request on 6 July 2001 (T p155). On 8 July 2001, Ms Lin departed Australia to return to China.
171. Since returning to China, Ms Lin has not suffered any adverse consequences as a result of the events in Australia. She is once again living with her mother and son and other members of her family in the family home in the village near Fuqing City. On 14 August 2001, Ms Lin’s application for a spouse visa was received at the Australian Visa Office in Shanghai. On 18 October 2001, Ms Lin and Mr Barnett were interviewed by Ms McKinnon, a Senior Migration Officer, at the Australian Consulate in Guangzhou. Ms McKinnon’s evidence, which is supported by that of Ms Zhao, is that Ms Lin was evasive in answering questions about her false passport and the time she spent in Australia. Ms Lin’s evidence is that because Mandarin is not her first language, she had difficulty in understanding some of the questions. She was also panicky and frightened.
172. Mr Barnett has made three visits to see Ms Lin in China. He says he has established a relationship with Ms Lin’s younger son, whom, together with Ms Lin, he is supporting financially. The Tribunal accepts that it would be difficult for Mr Barnett to relocate to China given his inability to speak the language and because all his ties in terms of employment, his home and other members of his family are in Australia. He also suffers from recurring melanomas which require regular checkups and treatment. The Tribunal accepts that both Ms Lin and Mr Barnett are in a genuine marital relationship of a loving and caring kind, involving a strong commitment to one another. During this period of separation, they have maintained contact largely by phone and through Mr Barnett’s visits to China to see his wife.
173. The Tribunal’s assessment of these events is as follows. It seems clear that Ms Lin lives in a relatively remote Fujian village and, prior to coming to Australia, had no worldly experience. Naively, she got caught up in a false passport scam and paid what in China was a large sum of money for a passport and visa to enable her to travel to Australia. She was obviously a victim of the scam in so far as she did not realise that the passport with which she would be provided would be in a false name, nor did she realise that the visa which had been obtained was only a visitor visa enabling her to stay in Australia for one month and did not permit her to work. Once events were in train, she was carried along by those events which found her in Sydney with no right to remain in Australia beyond a month and no permission to work.
174. The Tribunal is satisfied that Ms Lin took steps to try and regularise her situation as best she could by seeking the assistance of various migration agents. These agents did not assist her in understanding the nature of Australia’s migration laws and she was led to apply for a protection visa without any awareness of what she was doing or the basis on which the application was made. The Tribunal does not believe she composed the statement about the Falungong movement. This statement was used at the suggestion of another person as a means of supporting her protection visa application. The Tribunal has no doubt that Ms Lin was desperate. When her protection visa application did not succeed, she was taken advantage of by a man from Melbourne who claimed to be a migration agent and took her money, providing her with no real assistance except a letter from Starnet Legal. The conduct of the lawyer writing this letter, Kimani Adil Boden of East Brunswick, is open to question. An affidavit which was served on the Tribunal from Mr Boden dated 20 December 2002, but not tendered, appears to contain false information.
175. Despite Ms Lin having been caught up with various unscrupulous operators, she must still accept responsibility for her breaches of Australia’s migration laws and any false and misleading statements made in connection with her entry or stay in Australia. Ms Lin entered Australia using a false passport, made a protection visa application based on false claims of persecution in connection with the Falungong movement, was in Australia at various times without a valid visa and worked without permission. While there are clearly countervailing factors in relation to Ms Lin’s situation in China and as a result of the circumstances in which she found herself in Australia which to a significant extent explain the difficulties which beset her, nevertheless, in the Tribunal’s view, these are not sufficient to upset a finding that she does not pass the character test.
176. Having so decided, the Tribunal must thenconsider the exercise of the residual discretion under s 501(1) to decide whether or not to refuse the grant of a visa to Ms Lin. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
177. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).
Examples of offences considered by the Government to be serious include serious crimes against the Migration Act1958, which in turn include “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
178. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
179. With regard to the first of the primary considerations, the Tribunal has found that Ms Lin presented false documents and made false or misleading statements in connection with her entry into and stay in Australia. The Government rightly regards these as being very serious offences. However, consideration must also be given to any mitigating factors and, in Ms Lin’s case, it is clear that she was taken advantage of by a number of unscrupulous operators when she was in a vulnerable situation including, when she was in Australia, suffering the additional disadvantage of not knowing the system and having few English skills. As the Tribunal has already mentioned, she had very little worldly experience, was of limited education and naively relied on others who promised to provide their assistance. Given Ms Lin’s experiences of the past few years and her remorse at what has happened, in the Tribunal’s view it is very unlikely that she will ever repeat such misconduct. The Tribunal notes Ms Lin’s evidence that whenever the opportunity arises in China, she warns others who may be contemplating travel of the difficulties she experienced and to avoid unscrupulous operators at all costs. Thus, with regard to deterrence, it is clear that Ms Lin is already seeking to deter others who may be contemplating immigration misconduct. Whilst the refusal of a visa to those who have committed such misconduct is likely to have a deterrent effect, this is not itself a conclusive factor and other considerations may be taken into account.
180. The second primary consideration is the expectations of the Australian community. Paragraph 2.12 states there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal’s view, entering Australia on a false passport, remaining in Australia unlawfully and working without permission are serious matters. Nevertheless, the Tribunal notes what Deputy President McMahon said in ReLeha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054, of the relevant paragraph in Direction No 17 which is expressed in identical terms in paragraph 2.12 of Direction No 21:
Paragraph 2.12 (of Direction No 17) gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely. This view has been cited with approval by the Tribunal in other cases, for example, in Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74.
181. In the Tribunal’s view, the Australian community would take a compassionate view of Ms Lin’s situation and of the reasons which led her to Australia and as a result of which she faced considerable difficulties in Australia. Having found a person with whom she formed a loving and caring relationship, and having married that person, she is now separated from him and this is obviously causing both Ms Lin and Mr Barnett significant hardship.
182. The third primary consideration is the Best Interests of the Child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
183. The Tribunal finds that Ms Lin has two sons, Yang You Xing, aged 12, and Yang Chang Feng, aged six, both of whom live in the People’s Republic of China. Ms Lin’s older son is living with her ex-husband who appears to have custody. Her younger son is currently living with Ms Lin and her family and is in her custody and dependent upon her. He has never been to Australia and although he has established a relationship with Mr Barnett, he has no other connection with Australia. Neither of the parties have contended that Yang Chang Feng’s interests are a significant factor in this matter, although, clearly, whilst he might be disadvantaged by his removal from his home situation and having possible contact with his father made more difficult as a result, there may also be advantages to him in terms of greater opportunities for education and advancement in Australia. Overall, the Tribunal regards his interests as a neutral factor.
184. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the non-citizen’s business and other ties to the Australian community; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; and the family composition of the non-citizen’s family, both in Australia and overseas.
185. The Tribunal has found that Ms Lin and Mr Barnett have a genuine loving and caring marital relationship. Mr Barnett was not aware that Ms Lin was in Australia unlawfully at the time their relationship commenced although he and Ms Lin clearly had some doubts about whether she had permission to work. Mr Barnett assisted her in trying to regularise her position although this was overtaken by events, namely her arrest while working at the brothel at Fyshwick. Ms Lin’s family are all in China. Mr Barnett’s family are all in Australia. Mr Barnett has an established life in Australia, a home and employment, and would have difficulty adapting to life in China if he were permitted residence, a matter which has not been determined. If he were to live in China, this would mean that he would not have employment to support himself, his wife and her child and he would not have access to the medical treatment which he needs. In the Tribunal’s view, Mr Barnett is suffering considerable hardship as a result of the separation from his wife and has pursued all possible avenues to try and bring her to Australia so that they can live together as a family.
186. Weighing up the primary and other considerations, the Tribunal concludes that Ms Lin is no real threat to the Australian community. Moreover, the Australian community would expect that a compassionate view would be taken of her and Mr Barnett’s circumstances and that, despite her past misconduct, given her remorse and the hardship to both her and Mr Barnett, the discretion in s 501(1) should be exercised in her favour so as not to refuse the grant of a visa.
187. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Lin Ming.
I certify that the 187 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 14, 15 and 16 July 2003 and
8 September 2003
Date of Decision 22 October 2003
Representative for the Applicant Ms M Le, Migration Agent
Representative for the Respondent Mr J Neely, Solicitor
- AGLC
- Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065
- Case
- [2003] AATA 1065
- Decision Date
CaseChat Overview and Summary
The court considered the relevant case law, including Goldie v Minister for Immigration and Multicultural Affairs and Rokobatini v Minister for Immigration and Multicultural Affairs, which emphasised the importance of balancing the expectations of the Australian community with any hardship to the applicant. The Tribunal also took into account Vaitaiki v Minister for Immigration and Ethnic Affairs, which highlighted that discretion should be exercised in the applicant's favour if they passed the character test. Lin Ming's immigration misconduct was examined, and the Tribunal concluded that although she did not meet the character test, it exercised its discretion in her favour.
Ultimately, the Tribunal found that despite Lin Ming failing the character test, the discretion under section 501(6)(c)(ii) of the Act should be exercised in her favour. The Tribunal set aside the decision of the Minister and remitted the matter back to him with a direction to exercise the discretion to not refuse the visa in Lin Ming's case. This decision reflects the balance the Tribunal sought to achieve between the community's expectations and the applicant's personal circumstances.
Orders
Orders of the court
The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Lin Ming.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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