Re Hobbins and Minister for Immigration and Multicultural Affairs
[2006] AATA 279
•27 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 279
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/845
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN HOBBINS Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon RNJ Purvis, AM Q.C., Deputy President Date27 March 2006
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] The Hon RNJ Purvis, AM Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 provisional spouse visa – character test – Applicant considered to be not of good character – consideration of hardship on the Review Applicant – consideration of hardship generally – best interests of children – discretionary considerations – the decision under review is affirmed.
Migration Act 1958 – sections 234 and 501
Ministerial Direction 21
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321
Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Issa and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 421
REASONS FOR DECISION
27 March 2006 The Hon RNJ Purvis, AM Q.C., Deputy President 1. On 12 May 2005 a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) refused to grant the Visa Applicant a spouse (provisional sub class 309) visa under section 501(1)(6) of the Migration Act 1958 (“the Act”). She is the wife of Mr John Eric Hobbins (“the review applicant”) who, by an application lodged with the Tribunal on 29 June 2005, seeks a review of the refusal decision.
2. In the reasons for decision to refuse to grant a visa to the Visa Applicant the Respondent amongst other matters commented upon the following considerations. These aspects are here mentioned not because they are binding or influential upon the Tribunal but rather because they identify areas of concern. The relevant matters are:
“…
12. [The Visa Applicant] paid a third party to arrange a visitor visa to Australia with the intention of overstaying and working in Australia…
14. On 20 September 2002 [the Visa Applicant] lodged an application for a protection visa knowing that it contained false claims… [The Visa Applicant] appealed the refusal of her protection visa application to the Refugee Review Tribunal and to the Federal Court. During an interview at the Australian Embassy on 29 September 2004 [the Visa Applicant] stated that she applied for a protection visa so she could work in Australia.
15. In support of her current visa application [the Visa Applicant] provided a written statement dated 27 April 2004 in which she stated that she was a very loyal member of the Falun Gong and had started getting into trouble with the police due to her connection to Falun Gong. [The Visa Applicant] admitted to the department that she had only been given some books on the subject but was not a member.
...
24. [The Visa Applicant’s] disregard for Australia’s immigration laws is considered to be very serious…
25. [The Visa Applicant] has attempted to circumvent the visa process by repeatedly lodging applications containing false and misleading information...
26. [The Visa Applicant] has two children aged twelve and sixteen years. Both children are included in [the Visa Applicant’s] application to migrate to Australia. [The Visa Applicant] has not provided any information to suggest that her children would be affected by a decision under s 501(1)…
…
36. [The Visa Applicant] is deemed not to be of good character due to her past and present general conduct and did not pass the character test by virtue of s 516(c)(ii) of the Act. For the above reasons I am satisfied that [the Visa Applicant] does not pass the character test and that she was unable to satisfy me that she passes the character test…
44. I considered that [the Visa Applicant’s] activities have shown a blatant disregard for Australia’s immigration laws. The nature of [the Visa Applicant’s] conduct is such that I gave this consideration great weight having taken the view that such activity has the ability to undermine Australia’s immigration program.
45. I considered that [the Visa Applicant] has consistently provided false and misleading statements in all her dealings with the department including in her current spouse visa application.
46. …I considered that [the Visa Applicant] has not accepted responsibility for any of her actions.
…
48. Based on the above information I am of the view that there is a significant chance that [the Visa Applicant] will engage in similar conduct either in relation to her dealings with the department or with other Government agencies should her visa be granted…
49. In considering whether the refusal of [the Visa Applicant’s] visa would act as a deterrent to other non citizens who might engage in similar activities, I found that refusal in this instance may provide a deterrent effect…
51. In view of the repetitive and serious nature of [the Visa Applicant’s] activities I believe that the Australian community would expect [the Visa Applicant’s] visa application to be refused…
54. I noted that [the Visa Applicant] and Mr Hobbins were married in Australia on 24 February 2004. I considered their desire to be reunited in Australia. I accepted that Mr Hobbins would suffer emotional hardship should [the Visa Applicant’s] visa application be refused.”
THE ISSUES
3. The issues in this application as identified on behalf of the Applicant:
·Whether the Tribunal is satisfied that the Visa Applicant passes the character test pursuant to section 501(1)(6)(c)(ii)?
·Whether the Tribunal affirms or varies the decision under review or sets aside the decision under review and makes a decision in substitution for the decision under review or remits the matter for reconsideration in accordance with directions or recommendations?
THE HEARING
4. At the hearing of this application Mr Hobbins, the review Applicant was represented by Mr Richard Killalea of Counsel and the Respondent by Mr Anthony Cox, solicitor of Philips Fox, Lawyers.
5. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T29 and S1 to S13. Written material tendered on behalf of the parties was also received in evidence and marked accordingly. Namely:
Exhibit No
Description
Date Filed
T docs
T1 – T29
26 June 2005
T docs
S1 – S13
29 December 2005
A
Statement of J. Hobbins (5.6.05)
5 December 2005
B
Witness statement by YU Dong Qing (12.1.06)
16 January 2006
C
Bundle of letters (9) character reference various
5 October 2005
D
Two photos of Mr & Mrs Hobbins
9 March 2006
E
Bundle of phone cards
9 March 2006
F
Two cards and one letter
9 March 2006
G
Itinerary of travel documents
9 March 2006
1
Witness statement of G Taylor (8.2.06)
7 March 2006
2
Witness statement of Lei SUN (24.2.06)
7 March 2006
6. Oral evidence was given by Mr Hobbins, his daughter Ms Charmaine Hobbins and the Visa Applicant. They were each cross examined.
RELEVANT LEGISLATION AND MINISTERIAL DIRECTION
7.Section 234(1) of the Act provides:
"234 False Papers etc.
(1)A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both."
8.The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.
9.By section 501(1) of the Act the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test. The section provides as follows:
"501 Refusal or cancellation of visa on character grounds
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…"
10. The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 324 it was said:
"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard 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."
11. As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.
12. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction 21 issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.
13.Direction 21 as here relevant provides:
"PART 1 - APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.
1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ...
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).
…
Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
…
Subparagraph 501 (6)(c)(ii) - past and present general conduct
1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
…
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
…
PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, 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.
Primary Considerations
2.3 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.
Protection of the Australian Community
….
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)
a. The seriousness and nature of the conduct
2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
…
c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view 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 may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …
· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"
CHRONOLOGY OF RELEVANT EVENTS
14. A chronology of events relevant to these reasons is as follows:
Year
Day & Month
Event
1966
27 October
Visa Applicant born in China.
2002
31 May
Visa Applicant lodges application in Shanghai, China for a visitor (short stay) (sub class 676) visa.
2002
22 August
Visa Applicant first arrives in Australia on a one month visitor visa.
2002
20 September
Visa Applicant applies for a protection visa.
2002
10 December
Respondent refuses application for protection visa.
2003
23 October
Refugee Review Tribunal affirms refusal of a protection visa.
2003
1 December
Appeal to Federal Court commenced.
2004
24 February
Visa Applicant marries Mr John Eric Hobbins.
2004
23 April
Federal Court appeal withdrawn.
2004
15 May
Visa Applicant departs Australia.
2004
1 July
Visa Applicant applies in Shanghai, China for a spouse (provision) (sub class 309) visa with two dependant children.
2004
29 September
Visa Applicant attends interview at Australian embassy, China with the Respondent.
2004
22 November
Visa Applicant attends telephone interview with a migration officer.
2005
17 May
Respondent refuses spouse visa application.
FACTUAL SITUATION AND FINDINGS OF FACT
15. The Visa Applicant was born in Fujian Province of the Peoples Republic of China in 1966. She was first married in November 1987 and of such marriage has two children.
16. The Visa Applicant divorced her then husband in 1998, the husband initially being granted by a court, custody of the two children. Seemingly, by 2004 the children were no longer with their father, the son being at a boarding school and the daughter largely looked after by the Visa Applicant’s mother.
17. The Visa Applicant says that after the divorce, if not for a time before it, and because she was the one who wanted the divorce saying that her husband ill-treated her, she was distressed and not happy with her life. She sought, she said, some solace in reading books about Falun Gong. But apart from this she said she wanted to get away from her domestic environment and if possible, leave China. Australia was seen as such a location.
18. Through a friend she made contact with a “Taiwanese” person who allegedly was able to arrange for the issue to her of a one month visitors visa to visit Australia. She had obtained a Chinese passport on 26 April 2002. No explanation was forthcoming from her or any other person as to how the obtaining of the passport was achieved. She then handed the passport, a photograph and identification of herself and household register to the “Taiwanese” person. It was agreed, seemingly, through the friend, or perhaps directly, with the Taiwanese person that a fee of about 80,000 RMB (about A$10,000.00) would be payable. The Visa Applicant stated at the interview with a migration officer on 29 September 2004 that she was prepared to pay such a large sum, at the time eighty times her maximum monthly earnings, “as I wanted to leave Fujian no matter what country so long as she can get a visa for me”.
19. A short time later the passport was returned with a one month visitor visa (short stay) enabling her to enter Australia. However, the basis upon which the visa was granted by the Australian authorities in Shanghai was fraught with inaccuracies, false statements and the provision of false or fraudulent documents. The visa applicant says that she was not aware of the inaccuracies, falsehoods or fraud. She did not, she said, fill in the application particulars or sign the application. form It seems to the Tribunal that having already herself obtained a passport she should have been aware of the necessity to sign her application and ensure all particulars in it were correct. Whilst she may not have been aware of all of the false information she was sufficiently aware of its nature to place her on notice that the visa approval was being sought and was sought with the use of information that was not correct. Further, it is apparent on the basis of the evidence before the Tribunal that whilst she obtained only a one month visitor visa it was her real intention, once she had arrived in Australia, to stay in this country for as long as she could.
20. On the basis of the evidence before the Tribunal, I am satisfied that, such inaccuracies, falsehoods and fraudulent documents were briefly as follows:
·The provision of a false marriage certificate and employer’s letter as to marriage. The Visa Applicant had obtained a divorce from her previous husband in 1998. In her visa application it was stated that she was then married to a Mr Chou Chang Ming.
·Mr Chou Chang Ming applied for a visitor visa at the same time as the Visa Applicant. The home address and email address of both the Visa Applicant and Mr Chou Chang Ming were shown as the same. Neither address was that of the Visa Applicant.
·The Visa Applicant denied that she had children in China who were not travelling with her. She had then two such children.
·The Visa Applicant, as did Mr Chou Chang Ming declared that the purpose of their visit to Australia was “sight-seeing”. She told the Tribunal however that she “wanted to change her environment” and at interview with the migration officer on 29 September 2004 said that she intended to overstay her visit to Australia this before she departed China.
·The Visa Applicant declared that her support whilst in Australia would in part come from “my husband’s salary”. She had no husband at the time.
·The Visa Applicant declared that she was unemployed at the time of her visa application. In her evidence before the Tribunal she stated that she was at the time self employed and engaged in a “small business” earning from “a few 100 RMB to 1000 RMB per month”.
21. The Visa Applicant travelled to Australia with the real wife of Mr Chou Chang Ming. She paid the 80,000 RMB following her arrival fearing at the time that the visa “might be faked”.
22. Within one month of her arrival in Australia the Visa Applicant made application for a protection visa. She said that she found the country “so nice and clean” that she wanted to stay. This is not the true position. It was her declared intention to enter Australia and remain here before she left China. She said after her arrival in Australia that she saw a newspaper advertisement of a migration agent, a Mr Gustavo Gerard Alex Smith, and sought advice as to obtaining a protection visa, from him. Her Protection Visa application was lodged on 20 September 2002. As with the earlier visa application the application for a protection (class XA) visa contained false representations. They were on the basis of the evidence before the Tribunal briefly as follows:
·Stating that in September 2002 she was still married to the husband she had divorced in 1998.
·Stating she had only a son in China when she had also a daughter.
·When asked in the application why she had left China it was stated:
“I am part of the organisation called the Falun Gong. Firstly, I chose to leave China due to this reason as I know that my Government no longer will consider me if they knew I was in Falun Gong. Australia is safe, if anything, more accepting in other people’s beliefs. I know how Chinese Government will react to me, I’ve seen it in newspapers and I fear for the life I hold at my belief that will put me in danger. If the Government knows I’m Falun Gong my life is in danger, that is why I left.”
·The Visa Applicant was not then, nor had she ever been a part of the Falun Gong organisation. She had, she said, only read some books about it. She did not leave China on this account. She did not then fear for her life. She did not believe she would be put in danger.
·As to the question in the application form which asked, what do you feel may happen to you if you go back to China?, it was stated:
“I know what will happen if I go to China. All Falun Gong member know what happens. I have spoken to people about the good things that being in the Falun Gong have to offer. I can’t help it I love the Falun Gong. In China I spoke about the Falun Gong highly to people quietly so no one could tell but those I trusted. No police, no Government but they know. I know they know because as I’m here to relax and enjoy a new country of Australia I call friends and homes and police have come over asking for me in a rough way. My friends in China hate me. I like people here. They are nice and accepting of me. China doesn’t. No-one, not even my friends that I have know for a long time. They must be very scare. That makes me scared because I know my friends, they trust me. The police scared them, maybe hurt them. I saw how the Government treats us badly and kill us and they let us know about it.”
·The Visa Applicant did not “love” the Falun Gong. The police and Government did not know of any such activities. There were not any. So far as she knew, the police had not asked for her “in a rough way”. She did not admit to having “been scared”.
·It was also stated in the application that “the police would harm, hurt or mistreat her” if she went back because “the Government hate us”.
23. As with the visitor visa and the “Taiwanese” agent so with the Protection Visa application, the Visa Applicant stated that she left everything to the migration agent, Mr Smith. She said she was not aware of the allegations made in the application and did not have the material read over to her in Mandarin, even be it, the agent described by her as a “lawyer” spoke Mandarin and she experienced no difficulty in communicating with him.
24. I am satisfied that the Visa Applicant was well aware of the application being used in an endeavour to obtain for her more time in Australia. She mentioned to Mr Smith her interest in Falun Gong. She knew her “interest” was to be used in aid of progressing the application.
25. To the migration officer on 22 November 2004, the Visa Applicant stated that the migration agent prepared the documents but she “knew a bit” that the agent claimed “that you were a FG practitioner when you were not”. She was advised that “they were lodging a PV application on the basis of FG”.
26. The application for a protection visa was refused on 10 December 2002. The Visa Applicant applied for review to the Refugee Review Tribunal. This application was refused on 23 October 2003. In the review application it had been stated “I will face harsh punishment if I go back to China”. This was not true.
27. On 1 December 2003 the Visa Applicant applied to the Federal Magistrate’s Court for judicial review of the Refugee Review Tribunal Decision. In support of that application it was stated that “the RRT failed to accept that I am a genuine Falun Gong practitioner in the Peoples Republic of China”.
28. In her current provisional spouse visa application of April 2004, she and the Review Applicant were assisted by a Mr Min Wang of Australia SJ Education and Migration Service Company. In a statement annexed to her said visa application the Visa Applicant discussed her earlier life in China with her husband and their separation. She then stated:
“Due to my unhappy marriage life and due the heavy burden of my family, I became very stressed. By chance, I was introduced to practicing Falun Gong in China. I did not know much about Falun Gong in the first place. I was told that practicing Falun Gong could be good to my health and could reduce my stress. It was true that after practicing Falun Gong for a while, I became less stressed and I felt happy again. Since Falun Gong has done a lot of good things to me and I started becoming a very loyal member to the Falun Gong Organization. I thought that Falun Gong was a practice that would bring goodness to human being. Under the instruction of the Organization, I started telling good side of Falun Gong to many people. But I did not know that my good action had been noticed by Police and I started getting trouble from police. In order to avoiding punishment from the government, I left China for Australia in year 2002.”
29. This was the first time it had been mentioned that the Visa Applicant had been introduced to “practicing Falun Gong in China” or that she “started becoming a very loyal member of the Falun Gong organisation” or that she received “instruction” from the organisation or that she “started getting into trouble from police”. She had not previously admitted stating that she feared punishment from the Government.
30. Indeed, in a statement of hers of 1 May 2005 (T204) she stated “I was only a person who studied Falun Gong… I was not approached by any authorities in relation to Falun Gong”. In her answer to a migration officer on 22 November 2004 she said that she had not practiced Falun Gong but “had read books about it” (Exhibit 1).
31. As with the visitor visa application and the protection visa application the Visa Applicant stated in her evidence that whilst she signed the spouse visa application she did not read it and trusted Mr Min Wang. Having regard to the other matters discussed in the annexure, such as the details of past and then current domestic circumstances and the fact that both she and Mr Hobbins were present with the agent at the time, it is unlikely that the Visa Applicant did not also discuss with him her alleged Falun Gong involvement, if not, show him a copy of her earlier protection visa application. She was clearly a party to the making of this application.
CHARACTER
32. The Visa Applicant attributes the above misrepresentations, inaccuracies and presentation of fraudulent documents to a “lack of understanding” of Australian “visa application procedures and relevant regulations and to my appointment of wrong agents” (Exhibit B). However, the falsities do not relate to any lack of understanding. Their commission was deliberate. Also, blame cannot alone be laid upon the agents. The Visa Applicant was well aware that she was obtaining an advantage over others when she agreed to pay such a large sum of money to merely obtain a one month visitor visa. She knew or ought to have known that the visa was being obtained by the use of false documents and representations. She thought the visa might be “a fake”. She insisted upon being accompanied to Australia by the wife of the agent, Mr Chou Chang Ming. The money was not paid to the agent, and then by telegraphic transfer, until she arrived in this country. She knew that her documentation had been obtained by improper means.
33. With the protection visa application and its sequel, the Visa Applicant knew that her involvement, with the Falun Gong, slight as it had been, was being utilised in order to obtain for her, by false representations, an extension of her stay in Australia. She maintained the falsity into her present application.
34. The Tribunal is not saying that the Visa Applicant was aware of the full extent of any of the falsities, inaccuracies, misrepresentations and fraud. She does not need to have been. She was aware that the agents she retained were using the means at hand to obtain her requests. She was complicit in their endeavours.
35. It is not without relevance to note that the Visa Applicant in her written statement (Exhibit B) maintained that she “had to follow the previously submitted material” that is, the protection visa misrepresentations “to continue lying because I was desperate for living together with my husband”.
36. The conduct of the Visa Applicant indicated a contempt, if not a complete disregard for the law of Australia. She acted in breach of the Act. She made, or was a party to the making of false and misleading statements. She provided a bogus document. She may well have rendered herself liable to prosecution under the Act or Criminal Code. She was involved in a scheme designed to deceive immigration officials and which did deceive such officials. She consequently obtained entry into Australia, married in Australia and now seeks to use such marriage to re-enter the country. She is not prepared to bear any responsibility for the part that she played in the deceptions and seeks to place full blame upon the various agents. The Tribunal does not accept as warranted the position she seeks to assume. She demonstrated a disregard for the truth.
37. The above being so, the Tribunal is satisfied that the Visa Applicant is not of good character within the meaning of section 501(6)(c)(ii) of the Act.
HARDSHIP ON THE REVIEW APPLICANT
38. In the event of a visa being refused to the Visa Applicant, Mr Hobbins, an Australian citizen will suffer hardship. He had experienced a distressing break‑up of his de facto relationship with the mother of his daughter and son. He says that he was lonely and found friendship and love in the Visa Applicant.
39. Mr Hobbins must however, bear some responsibility for the position in which he finds himself. At the time that he and the Visa Applicant “were getting serious” she said to him that she was not a permanent resident in Australia and that she could stay only until May 2004. Again, he was with her when, prior to their wedding, she had a meeting with the migration agent, Mr Min Wang. Even be it that the Visa Applicant and Mr Wang were speaking for a part of the time in Mandarin he understood that Falun Gong was mentioned and was aware that her Falun Gong activities were to be detailed in the application. Mr Hobbins said in the course of his cross examination that “I know he (Mr Wang) fabricated more than what was said”. Mr Wang spoke to Mr Hobbins in English. Mr Hobbins thought the agent was “a sensible man”. According to Mr Hobbins (Exhibit A) “he explained to us it was normal and legal” and the Visa Applicant “only done what she was advised to do by her agent acting for her…”:
40. There is medical evidence before the Tribunal to the effect that Mr Hobbins is presently experiencing anxiety and depression aggravated by the Visa Applicant being overseas.
41. I accept that Mr Hobbins will experience hardship if the decision under review is affirmed.
HARDSHIP GENERALLY
42. The daughter of Mr Hobbins came to know the Visa Applicant when she was in Australia. She says that her new mother-in-law adapted herself to life in Australia and gave her father much comfort. She would like to have the Visa Applicant living in Australia with her father. She will experience some hardship if the visa is refused.
43. Mr Hobbins’ sister, Mrs Roslyn Koutts and a friend nurse Donna Gray speak well of the Visa Applicant and her relationship with Mr Hobbins. The marriage is genuine. These two people will also experience some sorrow if the Visa Applicant is not in Australia. Likewise with friends and acquaintances in China and Australia who speak of their knowledge of the Visa Applicant.
44. The daughter and son of the Visa Applicant support her marriage and speak of their comfortable relationship with Mr Hobbins. They will be sorry for their mother if she is to remain in China.
BEST INTERESTS OF CHILDREN
45. The two children of the Visa Applicant, now seventeen and thirteen years of age live with her in Fujian Province, China. The Visa Applicant has had their custody by order of a court since 20 May 2004. The son is at boarding school. The daughter has lived with her maternal grandmother and both children have a good relationship with their paternal grandparents and have regular contact with them.
46. If the Visa Applicant obtained a visa and the children travelled with her to Australia they would have limited opportunity to maintain contact with their grandparents. They would be separated from their father, with whom they maintain a meaningful relationship.
47. There is not any other evidence before the Tribunal as to the manner in which the interests of the children would benefit from their living in Australia. The evidence as it is indicates that the best interests of the children would be served if they remain in China.
DISCRETIONARY CONSIDERATIONS
48. The Visa Applicant’s conduct as detailed earlier in these reasons was very serious. She lodged or caused to be lodged three visa applications which contained false and misleading particulars. She knew of the nature of the information contained in them. It is not open for her to seek solace from the fact she retained an agent and the agent might have embellished the instructions given to him. She acted mindless of the means that were utilised to achieve her ends. In doing so she demonstrated a disregard for the law and the truth in connection with migration matters.
49. The frequency of the acts of misconduct and the fact that they extended over a relatively lengthy period of time are indicative of the likelihood that the Visa Applicant will engage in like conduct in the future when the situation is seen to warrant it. Her conduct, evidences an attitude of not caring whether statements in migration documents are true or false. She might well adopt the same attitude in relation to like matters.
50. The Visa Applicant sought to blame others for the errors and misrepresentations in her application forms and for the inconsistencies or incompleteness of her answers at interview. It is not open to an applicant for a visa to abrogate responsibility for providing accurate information.
51. There is a distinct possibility that refusal of a visa, and confirmation of the refusal to grant a visa, will act as a deterrent to others presenting false and forged documents and making false and misleading statements. The Visa Applicant displayed a propensity for dishonest conduct where a benefit might accrue to her.
52. The refusal of a visa will also send a clear message to others including migration agents and persons giving migration advice, that conduct of the type engaged in by the Visa Applicant will not be rewarded. Non citizens can expect to be refused entry if they so engage in like conduct as did the Visa Applicant. As was said in Ayaad and Minster for Immigration and Multicultural Affairs [2002] AATA 935 at paragraph 47:
“Refusing an application that might otherwise have been accepted where there has been falsity and deception can only draw this fact to the attention of those who might be contemplating similar conduct, the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered”.
53. I accept that the conduct of the Visa Applicant discussed earlier in these reasons is such as to not be acceptable to the Australian community and such as not to warrant the grant of a visa. Australian citizens have the right to expect non-citizens to obey the law both when in Australia and when making application to enter Australia. This is particularly important in the immigration context where the Applicant may be the only person able to provide an accurate rendition of events. As was stated in Issa and Minster for Immigration and Multicultural and Indigenous Affairs [2003] AATA 421 at paragraph 56 “the use of the migration system to serve unwarranted ends can only be seen as serious conduct deserving of adverse attention”.
54. As has been already indicated, hardship will be experienced by Mr Hobbins in the event of a visa not being granted to the Visa Applicant. Hardship to a lesser extent will also accrue to his daughter and her family. The best interests of the Visa Applicant’s children have not been shown to be favourably served by their migration to Australia.
DECISION
55. I am satisfied that the primary considerations as detailed in the Ministerial Direction 21 outweigh the other matters that are to be considered in arriving at a decision in this matter. The decision under review is affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis, AM Q.C., Deputy President:
Signed: Associate
Dates of Hearing 9 and 10 March 2006
Date of Decision 27 March 2006
Counsel for the Applicant Mr R Killalea
Solicitor for the Respondent Mr A Cox, Phillips Fox Lawyers
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