Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1331

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1331

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/702

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mohammad Kaveh

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date14 December 2004

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – spouse visa – refusal of spouse visa on the ground that the visa applicant fails the character test – past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s immigration history including her arrival in Australia on a transit visa fraudulently obtained and applying for a protection visa using false and misleading information – examination of the visa applicant’s spouse visa application – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant – at hearing the applicant concedes that the visa applicant fails the character test – found that the visa applicant’s immigration misconduct was prolonged and intentional and of a  serious nature – deterrent effect is necessary as past cases before the tribunal disclose a regular incidence of fraudulent or attempted fraudulent applications from China – found that her immigration violations outweigh the other considerations – decision of the respondent is affirmed.  

Migration Act 1958 ss 499, 501, 501(6)(c)(ii)

Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065

Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038

Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

14 December 2004	Professor GD Walker, Deputy President
Summary

1.      The visa applicant, Jin Yu Ping, who is aged 40 and a citizen of the People’s Republic of China, first arrived in Australia on a transit visa on 16 June 2001, departing on 17 June 2001 and returning again on a transit visa on 26 June 2001.  On 28 June 2001, Ms Jin applied for a protection visa which was subsequently refused.  Ms Jin appealed against that decision, including by seeking ministerial intervention.  On 5 April 2003, Ms Jin departed Australia and on 6 May 2003, Ms Jin lodged an application for a subclass 309 spouse (provisional) visa.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Ms Jin entered Australia on a subclass 771 transit visa which was obtained fraudulently, that she made false and misleading statements in her protection visa application, and that she has not been truthful in any of her immigration dealings.  The respondent therefore refused Ms Jin’s spouse visa application.  That is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Mohammad Reza Kaveh, was born in Isfahan, Iran, on 18 September 1972 and is aged 32.  Mr Kaveh was granted Australian citizenship on 30 March 2000 (T p124).  He was formerly employed as a car detailer but is now conducting with Ms Jin an export business in Shanghai.  

4.      The visa applicant, Ms Jin, was born in Shanghai, China, on 6 August 1964 and is aged 40.  On 23 November 1987, Ms Jin married Shen Weiguo, the marriage ending in divorce on 1 March 2003.  There is one child, a son, Shen Zheng, who was born on 22 October 1989, is aged 15, and who lives in China (T p123).  Mr Shen has custody and access rights to Shen Zheng.

5.      On 16 June 2001, Ms Jin arrived in Australia on a subclass 771 transit visa issued by the Australian consulate general in Shanghai.  Ms Jin departed Australia on 17 June 2001, when she flew to Chile, returning on 26 June 2001 on a transit visa.  Enquiries made by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) later led departmental officers to the conclusion that Ms Jin’s transit visa had been obtained using false and misleading information and had been supported by fraudulently obtained documents.

6.      On 28 June 2001, Ms Jin applied for a protection visa, with the assistance of her then migration agent, Simon Feng, on the grounds that she “wanted to escape China and the nefarious communist regime that had made my life miserable from the time I was born”.  She stated that in Australia there is “no corruption to speak of and it is unconstitutional for those in government offices to accept bribes for favours”.  She also said that she understood that she had not suffered persecution but still wished to seek refugee status (T5 pp46-70).  On 17 July 2001, Ms Jin’s protection visa was refused and she was granted a bridging visa A valid until 28 days after a final decision was made in relation to her protection visa application (T p84).  On 15 August 2001, Ms Jin applied for a review of that decision by the Refugee Review Tribunal (“RRT”) (T6 p93), who on 16 August 2001 acknowledged receipt of her application and invited her to lodge any further evidence in support of her application as soon as possible (T p99).  On 9 July 2002, Ms Jin was informed that her appeal was to be heard on 22 August 2002 and she was invited to attend to give oral evidence in support of her application (T p101).

7.      On 14 July 2002, Mr Kaveh met Ms Jin at a Korean restaurant in Sydney, at a dinner organised by a friend of Ms Jin. 

8.      On 20 July 2002, Ms Jin informed the RRT that she did not wish to attend the hearing.  That notification was received by the RRT on 22 July 2002 (T p103).  On 26 July 2002, the RRT affirmed the decision to refuse a protection visa to Ms Jin (T p107).  On 28 July 2002, Mr Kaveh and Ms Jin commenced their relationship.

9.      On 26 September 2002, Ms Jin’s then migration agents, Louis Luo & Co, requested ministerial intervention on her behalf and she was granted a bridging visa E on 27 September 2002 pending the outcome (T p114).  Further bridging visas E were granted on 25 October 2002 and 24 January 2003 (T p13).  Ministerial intervention was subsequently refused on 8 March 2003 (T p116).   

10.       On 1 March 2003, Ms Jin’s divorce from Mr Shen became absolute (T p167). (The Certificate from the Federal Magistrate’s Court at Townsville records Ms Jin’s address as 1/104 Mitchell Street, North Ward, Queensland, 4810.)

11.     On 2 April 2003, Mr Kaveh and Ms Jin were married in the Uniting Church at Croydon, New South Wales (T p169).  On 5 April 2003, Ms Jin departed Australia, accompanied by Mr Kaveh (T p118).

12.     On 24 April 2003, Ms Jin’s migration agent lodged an application for a subclass 309 spouse (provisional) visa with the Australian consulate in Shanghai (T7 p118).  With that application was filed a consent signed by Mr Shen, consenting to Ms Jin bringing the child Shen Zheng to Australia to live with her (T p168).  The application was received by the consulate on 6 May 2003 (T p118).

13.     On 14 May 2003, the Australian visa office in Shanghai acknowledged receipt of Ms Jin’s application and informed her that she was required to attend an interview with an officer from the visa office on 1 July 2003 (T p202).  At that interview, Ms Jin informed the officer that the company she worked for as sales manager from February 2001 until June 2001, Shanghai Ami Trading Company (Ami), applied for the transit visa for her for the purpose of her travelling to Chile to undertake business activities on behalf of the company.  She did not pay for the visa application but was required to pay 20,000 RMB for her ticket.  She said that when she was in Sydney she was advised to apply for a protection visa so that she could stay in Australia and work. She did not know what the protection visa application said, “but I knew it was about Falun Gong” (T p206).  She also stated that while she was in Australia, she worked for five months at a “sauna place” before changing to another “sauna place in Chinatown”, before leaving to work as a cleaner in a hotel.  Ms Jin stated that she met Mr Kaveh when a friend asked her if “she would be interested in getting a boyfriend” (T pp204-211).  Mr Kaveh was also interviewed on 1 July 2003.  At the interview, he stated that it was important for him to start a new life as soon as possible and that he had paid $2,000 to come to Shanghai with his wife (T pp216-220).  On 5 August 2003, Ms Jin’s migration agent lodged an Assurance of Support by David Francis Denton with the visa office (T13 p226).

14.     On 13 November 2003, a senior migration officer at the Australian visa office informed Ms Jin that she was considering refusing her visa application on the ground that she did not pass the character test because of her past and present general conduct, and in particular that she had travelled to Australia on a transit visa obtained with fraudulent documents, that she had submitted a protection visa application despite being advised by a migration agent that she did not have grounds for doing so and only for the purpose of being able to remain in Australia and work, and that she had applied to the RRT and for ministerial intervention on the same grounds (T p246).

15.     On 18 December 2003, Ms Jin made a submission to the visa office stating she had applied for a protection visa, and then for a review including ministerial intervention, on the advice of a migration agent: “I did not want to breach any immigration regulation.  I only wanted to stay with my love” (T15 pp251-252).

16.     On 15 January 2004, Ms Jin’s migration agent informed the Australian visa office that Mr Denton had withdrawn his assurance of support for Ms Jin and that she was currently looking for a new assurer (T16 p256).

17.     On 24 March 2004, Ms Jin was interviewed for a second time at the Australian visa office.  At that interview, Ms Jin admitted that she knew her transit visa contained false information.  She disagreed that the Shanghai Ami Trading Company (Ami) did not exist, saying that “The office was there and I was working with them together”.  She said that she wanted to stay in Australia because there were more chances for her clothing business in Australia but that she did not know that she had applied for a protection visa, the migration agent had cheated her.  She denied that the migration agent had told her that the application would fail (T18 pp258-261).

18. On 26 May 2004, a delegate of the respondent decided to refuse Ms Jin’s spouse visa application on the ground that she did not pass the character test because of her past and present general conduct and having elected not to exercise her discretion under s 501(1) of the Migration Act 1958 (“the Act”) to grant a visa to Ms Jin (T2).   On 15 June 2004, Mr Kaveh sought a review of this decision by the tribunal.

19. At the hearing, Mr Kaveh was represented by Gareth Lewis, solicitor, of Lewis Law, solicitors, and the respondent was represented by Jodie Maurer, solicitor, of the Australian Government Solicitor’s office. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), which were admitted into evidence as Exhibit R1, together with the other evidence tendered by the parties at the hearing. Mr Kaveh gave oral evidence in person and Ms Jin gave evidence by telephone from China.

Relevant Law and Policy

20. 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 is met. The relevant ground in the current matter is paragraph (c)(ii), as follows:

(c)       having regard to either or both of the following:

…         

(ii)         the person’s past and present general conduct; the person is not of        good character; …

21. 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. Section 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”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

22. 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 the 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, they exercise the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

23.     At the hearing the applicant conceded that Ms Jin is not of good character having regard to her past and present general conduct, in particular because she made false and misleading statements in her transit visa application and in her protection visa application, which she lodged for the purpose of obtaining permission to work in Australia. 

Issue

24. The issue for the tribunal in this case is, therefore, whether nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa to Ms Jin.

Evidence

25. The respondent’s statement of facts and contentions (Exhibit R2) submits that Ms Jin fails the character test in s 501 because she has shown contempt or disregard for immigration law in the following respects:

(a)(i)        her subclass 771 transit visa contained false and misleading information in relation to her address, the address of the nominated company, her position within it and the reasons for travel and the need to transit in Australia; and

(ii)       her subclass 771 transit visa application included fraudulent documents which were manufactured to support the application.

(b)she applied for a protection visa in full knowledge that she had no grounds to sustain such an application.  She wilfully misled the department throughout all stages of her application for refugee status.  At no stage did she attempt to clarify her situation with the department.

26. The applicant’s statement of facts and contentions (Exhibit A1) contends that Ms Jin is of good character and that her breaches of immigration law were purely of a technical nature. The statement also argued that the discretion in s 501 should be exercised in her favour. At the hearing, the applicant conceded that she failed the character test and relied solely on the argument that the discretion should be exercised in favour of granting Ms Jin a visa. Although the issue of character is thus conceded, it is necessary to outline the sequence of events in the case in order to form an accurate picture of the seriousness and nature of the offences involved for the purposes of applying the considerations relevant to the exercise of the discretion.

27.     At an earlier stage in the matter, it had been suggested that Ms Jin’s journey to Australia had been organised by persons involved in people-smuggling (T pp17-18, 272-273), but that contention was not pursued at the hearing.

28.     In relation to the subclass 771 transit visa, the oral and documentary evidence indicates that the following course of events occurred.  In March 2001, Ms Jin commenced work with the Shanghai Ami Trading Company (Ami), having previously gained experience and expertise working for other companies in the garment industry.  Ami’s owner was a Mr Du Er Kang, and his wife Ms Zheng Wei (also rendered in the documents as Cheng Wei and Chen Wei) worked in the company with Mr Ge Jian Guo, who was the vice-manager.  Ami was a trading company and did not itself do any manufacturing, but outsourced the manufacturing of the garments that it sold.  Mr Du asked Ms Jin to travel to Chile where there was to be a clothing trade fair, in order to promote sales of Ami’s goods.  She was to travel as part of a group of five people.  It was also suggested at one point that someone in the group would be investigating the possibility of buying a farm in Chile. 

29.     Ms Zheng made the parties’ travel arrangements with a travel agency.  She filled in Ms Jin’s transit visa application because it was in English and Ms Jin could not read it.  She gave Ms Zheng her identity card and telephone number for that purpose.  Ms Zheng apparently filled in Minkang Road as Ms Jin’s address, which was incorrect and Ms Jin did not know that address at all.  Ms Zheng also filled in Ms Jin’s occupation as finance manager of the company, which was incorrect at the time, as she was the marketing manager, although she may have initially been appointed to the company with the title of finance manager. 

30.     The company address given in the form, Mei Long Road, Hongqaio, was not Ami’s business address.  Departmental officers at the Shanghai consulate tried to find the company at that address but were unsuccessful, and concluded that the company might not exist.  Ms Jin herself had once gone to the Mei Long Road address and had not found the company office there.  She was not able to go inside the building because it was closed.  She insisted that the company did exist, though, and that she had worked for it between March and June 2001.  She said the company occupied a whole building in Hong She (or Hong Xu) Road in Ming Hua Yuen.  Ms Zheng had told her that the company had purchased the building in Mei Long Road and used its address for its registered office, but the actual operating address of the business was at the building in Ming Hua Yuen. 

31.     Ms Zheng had originally arranged for the party to travel to Chile via Frankfurt, but altered the itinerary to go via Sydney in order to avoid a four-hour airport layover between flights.  Ms Jin paid Ms Zheng 20,000 RMB for the airfare but did not pay anything for the visa.  The sum of 20,000 RMB (about $3,100 at today’s rates) seems reasonable for a return journey to Chile via Sydney and is not in any way suspicious.  Ms Jin purchased four large packs of samples to take to Chile with her.  Departmental officers thought it rather suspect that she would take samples manufactured by others rather than by Ami.  Ms Jin confirmed that such was the case, and explained that the arrangement was that she would arrange for sub-contractors to manufacture any goods for which she obtained orders at the exhibition in Chile. 

32.     It was also considered suspicious that she paid her own airfare when she travelling on behalf of the company, but she explained that she worked for Ami on a commission basis and paid her own fare for that reason.  The respondent pointed also to the passage in the statement lodged with her protection visa application, which reads:

I decided that I would try to travel via Australia so I applied for the necessary transit visas, but at this time I was seriously devising a plan to try to stay in Australia permanently.  I wanted to escape China and the nefarious communist regime that had made my life miserable from the time I was born (T p69).

Ms Jin repudiates that statement in relation to the transit visas, but it is of course relevant to the general falsity of her protection visa application.

33.     On the way through Sydney to Chile, one of the five members of the party became sick and remained in Sydney, but the others continued to their destination.  When they departed from Chile on their return journey, Ms Jin left the four packs of samples behind.  Ms Zheng remained in Chile temporarily to collect payment for the samples and perhaps for other business reasons.

34.     When Ms Jin disembarked in Sydney on 26 June, she discovered that one of her suitcases, which contained presents for her family, had been lost.  When her baggage had not been found by the 27th, she became concerned that she would become illegal if she remained in Australia, as her transit visa was valid for only three days.  A friend, Mr Liu Min, who had met her at the airport on arrival, suggested that she should seek migration advice to ascertain whether she could remain lawfully.  Mr Liu’s wife took Ms Jin to a migration adviser, Mr Simon Feng, who said that he could lodge an application for a visa to enable Ms Jin to stay lawfully in Australia and with permission to work.  Ms Jin thought that a good idea, as she wanted to remain a little longer to see if her luggage could be found, and in the meantime investigate business opportunities for clothing exports to Australia, as she had obtained no orders in Chile. 

35.     Compiling an accurate picture of the events surrounding the transit visa contraventions has not been assisted by the lack of any evidence from Ami or from Ms Zheng in relation to the business trip to Chile, Ami’s address, and indeed whether the company existed at the time or still exists.  On the other hand, the respondent has not produced the application form for the transit visa, despite repeated requests by Ms Jin.  It is reasonably clear that the form did contain false statements concerning Ms Jin’s address, her position in Ami and the company’s business address.  Ms Jin explains, however, that she gave her identity card with her address on it to Ms Zheng and had no reason to misrepresent her address, her position with the company or the company’s address.  Further, it does appear that the company address given may have been Ami’s registered office, although it was not its operating address.  She stressed that as far as she was concerned the documents were all genuine and that she did not submit any false or bogus material in connection with the application.  She denies that the transit to Chile was contrived in order to enter Australia unlawfully, asking rhetorically why it would be necessary for her to incur the expense of travelling to Chile and back for that purpose.

36.     There is no evidence indicating that departmental officers at the Shanghai consulate performed, or attempted to perform, a corporate registry search for Ami, or whether such a search is possible or useful at this stage of China’s breakneck industrial development.  It does appear that they tried to locate Ami at the Mei Long Road address but were unsuccessful.  It might not be surprising that they could not find Ami’s office in the seething megalopolis of 20 million people that is modern Shanghai, whether the company existed or not.  On balance it seems probable that Ami did exist as a business, whether as a corporation, a division of one, or as a firm.  Otherwise it is hard to account for the journey of the party of five to Chile and back.

37.     The respondent’s contention that Ms Jin submitted bogus documents manufactured to support her application appears to rest on an inference from the existence of the false statements in the transit visa application.  The respondent does not point to any particular supporting documents as having been manufactured or concocted as such, and there is no evidence that any such documents existed. 

38.     The evidence in relation to the protection visa application, the subsequent appeal to the RRT and the requests for ministerial intervention under s 417 disclose a higher degree of culpable awareness on Ms Jin’s part.  Her friend took her to see the migration agent, Mr Feng, who said he could arrange for her to stay lawfully and work in Australia.  At the hearing she said she asked him what kind of visa it would be, and he replied that it would be the same kind as for all his other clients in a similar position, a visa valid for one year.  She paid Mr Feng $300, signed the application and left her passport with him.  It was returned to her three days later with a visa stamped in it.  On or about 17 July 2001 the migration agent telephoned her to say the application had been rejected, but that she could appeal.  She asked him why he had said the visa would be valid for one year, and he had replied that that was just the procedure, and that if she paid an additional $200 the visa would be renewed.  She admitted that she signed the application for review by the RRT simply in order to stay in Australia.  At that point she was unaware of the exact nature of the visa, but shortly afterwards showed the letter to a friend, who explained that it related to an application for a protection visa, a type of visa that was difficult to obtain.  Ms Jin said her understanding at that time was that a protection visa would “protect” her from being unlawful in Australia and she did not realise that it related to the situation of a refugee needing protection.  She had thought that a “refugee” meant someone who had been displaced by war.  She did not realise that her own application was a claim for refugee status until she received the letter from the RRT informing her that her appeal had failed. In her statement (Exhibit A4) she maintained that if she had known the nature of her claim, she would not have agreed to apply because she never regarded herself to be a refugee. 

39.     She received the RRT’s letter of 9 July 2002 (T pp101-102) and showed it to a friend at work, who told her that it was informing her of a hearing to be held on 22 August 2002.  As she did not speak English and did not know what she would be expected to do at the hearing, she decided not to attend.

40.     Ms Jin had lodged her RRT review application at the same time as a friend had done so.  They had paid the $200 fee together.  When her friend received notification that her appeal had succeeded, while she herself had heard nothing, Ms Jin attempted to contact Mr Feng by telephone.  On being unsuccessful she went in person to his office.  A note on the door advised clients to inquire next door about any correspondence that might concern them, and that was how she obtained the letter informing her that her RRT appeal had failed.  By this time Mr Feng’s license as a migration agent had been cancelled.  Ms Jin took the letter to her new migration agent, Mr Luo, who she had already consulted on the subject of a possible spouse visa application.

41.     Ms Jin has always maintained that until September 2002 she was unaware that she had made, and was pursuing, a groundless application for a protection visa based on refugee status.  Mr Feng had required her to sign an acknowledgement that she had been advised by the migration agent that in his opinion her application for a protection visa had no prospects of success and that she was requesting him to proceed, notwithstanding that advice (T p83).  The notice containing that advice was written entirely in English and was dated 27 June 2001, the day after Ms Jin’s arrival in Australia and the same date as her protection visa application.

42.     Ms Jin admitted at her interview on 1 July 2003 that Mr Feng had told her that the visa application would not succeed, and that it was only for the purpose of extending her stay in Australia (T p206).

43.     Subsequently she lodged an application for ministerial invention under s 417 through her new agent Mr Luo by letter dated 26 September 2002 (T pp114-115).  That application was not based on the requirements for refugee status, indeed it conceded that she did not meet them, but sought intervention on humanitarian grounds based on a “threat to personal security, intense personal hardship and abuse of human rights”.  Those claims were also unfounded.

44.     While it is possible that Ms Jin remained unaware until September 2002 that a protection visa entailed a claim for refugee status, it also seems likely that she knew the process involved some kind of claim of political or similar oppression.  At her interview on 1 July 2003, on being asked whether she knew the contents of the statement attached to her protection visa application, she replied “No, I could not read English, but I knew it was about FaLun Gong.  I only signed it to get work permit” (T p206).  In her later interview on 24 March 2004, she denied making that statement: “I told you that I knew nothing about the PV application until 8/02” (T p261), but the earlier admission, so definite and specific, is more likely to be true.  As it happens, neither the protection visa application, nor the application for RRT review (which was in identical terms), nor the letter seeking ministerial intervention made any reference, express or implied, to Falun Gong.  It therefore seems likely that Mr Feng mentioned Falun Gong (a socio-spiritual movement that the Chinese government has striven to repress in recent years) in the course of his discussions with Ms Jin concerning her proposed visa.  Falun Gong could have been a relevant topic of conversation only if a protection visa were contemplated.  I therefore conclude that Ms Jin was at least in some general way aware of the nature of her protection visa application and that she persisted with it knowing it to be unfounded.

45.     The statement lodged with her protection visa and RRT applications (T pp69-70, 97-98) does not advance any particular fabricated instances of persecution that she claims to have undergone, in fact it specifically disclaims any such experiences: “I have not suffered persecution, nor have I been caught up in serious conflict”, it states.  But, whether she was fully aware of it or not, the statement does seek to portray her as a wretched victim of “the nefarious communist regime” with an unquenchable yearning for democracy and freedom.  That depiction seems to bear little relation to her case.

46.     In late June 2001, not long after receiving her passport with the visa back from Mr Feng, Ms Jin began work at “a sauna place”, where she continued to work (in what capacity is not known) until she changed to another “sauna place in Chinatown” (T p206).  She left that position to take a casual job as a cleaner in a hotel until September 2002.

47.     A little before she started work at the sauna establishment, on 13 July 2001, Ms Jin was robbed “by four mid-eastern people”, who took her bag containing her passport.  She contacted Mr Feng to inquire if he could apply for a new passport for her, but he advised her that it was impossible.  Some time later, a friend with whom she was working at the sauna asked her, as she was by herself, whether she would be interested in meeting a possible boyfriend.  “She said he was a nice guy, an Iranian.  I said I did not like mid-eastern people because my bag was robbed by mid-eastern people”.  Undeterred, her friend and her husband arranged for Ms Jin to meet the Iranian, who was the review applicant in this case, Mr Mohammad Kaveh.  The facts and circumstances of her ensuing marriage to Mr Kaveh constitute the main part of the evidence on the “other considerations” relevant to the exercise of the discretion (Direction No 21 paragraph 2.17(b)).  The parties met on 14 July 2002 at a Korean restaurant in Sydney at a dinner organised by Ms Jin’s friend.  Her friend explained to her that Mr Kaveh was a friend of her husband and that he was depressed as he had been cheated by his former girlfriend.  She had lived with him for two years in Australia, had persuaded him to buy many things for her, but omitted to tell him that she had a husband and child in Iran.  The relationship had broken up in acrimony three months previously after her husband had arrived in Australia.

48.     Ms Jin found Mr Kaveh patient and intelligent and the two soon became close.  Mr Kaveh then returned to his parents’ home in Iran, telling them about the relationship, showing them photographs of the two of them together and seeking their opinion.  His parents gave their blessing to the relationship, and after he returned the two decided to live together, leasing an apartment in their joint names for that purpose on 11 September 2002 (T p148).  There they lived until she returned to China.  Shortly after they commenced cohabitation, Mr Kaveh proposed marriage to Ms Jin, but at that stage she wanted to know him better before making such a commitment.  He proposed to her again on the Chinese New Year’s Day, 1 February 2003.  “I gladly accepted his proposal because I believed that he is honest and sincere” she said.  “Mohammad has good temper, treats me very well and when we had our toughest time of our lives, he would do any thing for me” (T p148).

49.     Shortly after they had first met, Mr Kaveh, mindful of the importance of Ms Jin’s visa status in Australia, had asked her about it.  She showed him her passport, and when he saw the visa stamped in it he concluded that she was legal in Australia and did not inquire further.

50.     After receiving the letter informing her that her RRT review application had failed, Ms Jin went to see her new migration adviser, Mr Luo.  She was by this time living with Mr Kaveh and asked Mr Luo about her options.  He asked if they were planning to marry, and when she replied that she wanted to know Mr Kaveh better before entering into marriage, Mr Luo said, in that case, he would write to the Minister seeking s 417 intervention.  That process would take between four and six months, which would give her enough time to know him better.  Thereupon she paid Mr Lou $400 and he wrote the letter to the Minister.  She claims that at the time she did not know the letter contained false assertions about the hardships she was likely to face if she returned to China. 

51.     Ms Jin next saw Mr Luo in February or March 2003 when she was engaged to Mr Kaveh.  The documents show that Mr Luo prepared the spouse visa applications on 3 April 2003 and lodged them with the Australian consulate in Shanghai by letter dated 24 April 2003.  Ms Jin and Mr Kaveh were married on 2 April 2003 and departed for China three days later.

52.     There is a significant discrepancy between the evidence of the two parties concerning when Mr Kaveh became aware of Ms Jin’s status in Australia as a non-citizen going through the process of applying for a protection visa and appealing against refusal.  Mr Kaveh was quite definite that he did not become aware of the situation until after the wedding.  He said that the couple had seen the migration agent shortly after they had got married and that he had explained the situation to Mr Kaveh.  They then asked him to arrange a visa for Ms Jin.  Subsequently, they saw the agent once a week to discuss progress in the matter.  Ms Jin, on the other hand, was equally positive at the hearing that she had gone to see the agent with Mr Kaveh while they were living together, before the wedding.  She dismissed his different recollection, saying that he has a bad memory for times and that she often has to tell him correct dates.  Ms Jin’s version is likely to be correct, because Mr Kaveh’s account cannot possibly be.  As the parties were married on 2 April 2003, signed the spouse visa application on 3 April and departed together for China on 5 April, they could not possibly have made repeated weekly visits together to the agent to discuss progress.  At one point in her oral evidence Ms Jin said that they had been to see Mr Luo together before Mr Luo sent the s 417 letter of 26 September 2002.  At all events, it is clear Mr Kaveh was aware before the wedding of Ms Jin’s visa status and of the possibility that she might not be able to obtain a visa to live in Australia.

53.     After their arrival in Shanghai on 5 April 2003, Ms Jin introduced her husband to her family.  A formal wedding banquet was held in Shanghai on 12 April.  Mr Kaveh has cordial relations with Ms Jin’s family and meets them every Sunday when he is residing with Ms Jin in China.  Her son is often present at these family gatherings.  Ms Jin is helping Mr Kaveh to learn to speak Mandarin and they live at her house in Shanghai, which she does not share with anyone else.  Although both would strongly prefer to live in Australia, they have established a life in China.  Mr Kaveh has visited her in China 12 times and has spent only two months in Australia in the past year.  They have together established a business named Marco Tech, taking advantage of a three-year tax holiday offered by the Chinese government.  The business has been operating successfully for 18 months, conducting clothing export business with Iran.  Mr Kaveh obtains orders from Iran and they buy the garments to fill the orders together.  They run their business from their home and travel to other Chinese cities on business and for vacations.  Neither party has any family or close ties in Australia.  They have no business ties with Australia either, although they stress that the Marco Tech business could be successfully transferred to Australia.  Mr Kaveh emphasised his strong wish to live in Australia, which he says he now regards as his country, and he wants to live with his wife here. 

54.     A notable feature of the evidence at the hearing was Ms Jin’s marked tendency to give voluble, discursive and protracted replies which, as often as not, failed to answer the question.  That led to general expressions of exasperation in the hearing room and her own lawyer had to ask the tribunal for a direction that Ms Jin be told to answer the question.  I did not, however, regard her demeanour as evidence of evasiveness or prevarication so much as an over-eagerness to tell her side of the story.  She appears to be an effervescent personality, and as is not uncommon with such people, she tends not to pay close attention to what others are saying or asking.  As Mr Lewis said of his client, if she had been trying to be manipulative she would have made a better job of it.

Application of the Law and Findings of Fact

55. As noted above, the applicant concedes that Ms Jin does not pass the character test having regard to her past and present general conduct (s 501(6)(c)(ii)). The issue for the tribunal to consider is therefore whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Ms Jin. In exercising the discretion, the tribunal is to have 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.

56.     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.

57.     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…

58.     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).

59. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “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.

60.     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”.

Protection of the Australian Community

61. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as serious. Ms Jin’s representative has conceded that her conduct in making false and misleading statements in both her transit visa application and protection visa application is very serious. In relation to the transit visa application, the incorrect statements about her address, Ami’s address and her position with Ami were insubstantial and I accept that they were made without Ms Jin’s knowledge by Ms Zheng, who filled in the form on Ms Jin’s behalf, although as Ms Jin probably signed the form she is responsible for its contents.

62.     The false and misleading grounds for her protection visa are a much graver matter.  Although she did not fabricate any particular instances of persecution, her general self-portrayal as a freedom-loving dissident was greatly exaggerated at best, and probably wholly false.  It is possible that, as she claims, she was unaware that she was claiming refugee status, as she mistakenly understood that term until the rejection of her RRT appeal in September 2002, but she certainly knew no later than July 2001 that she was seeking a protection visa.  Given her (mistaken) admission that she knew from the start that her application had something to do with Falun Gong, I conclude that from the outset she was aware that she was claiming to have suffered some form of persecution in China.  That was entirely untrue.  By instituting and pursuing her application, appeal and request for ministerial intervention she perpetrated a gross abuse of the migration law system that involved the department in considerable waste of time and resources.  I find that her immigration misconduct is of a serious nature given that such conduct was prolonged and intentional.

63.     The risk that the visa applicant might commit similar offences in the future, whether in the context of migration or some other area of federal or state law, cannot be excluded.  Even in the course of applying for the spouse visa she was too economical with the truth, such as when she tried to retract her earlier admission about Falun Gong (T p261).  Her establishment with her husband of a legitimate and successful export business in a market as competitive as garment export is, in my view, evidence of reform, rehabilitation and recent good conduct that is relevant both to the issue of character and to the exercise of the discretion.  But like her expressions of regret and contrition, it is too recent to outweigh the adverse effects of her earlier misconduct.

64.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that the visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.  Past cases before the tribunal disclose a regular incidence of fraudulent applications and attempted fraud originating in China (see, for example, Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 at paragraphs 112 and 127; Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828 at paragraph 50; and Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038 at paragraph 70). I therefore consider that to grant a visa to Ms Jin would send entirely the wrong message to others who might be contemplating engaging in conduct of that kind.

Expectations of the Australian Community

65.     As regards the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal … 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.

66.     In my view the community expects that the migration program will be administered with integrity and humanity.  In a situation where the number of visas available to prospective immigrants is necessarily limited, that implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.  In this case I believe the community would consider that Ms Jin’s record of immigration law violations would weigh in favour of refusing her spouse visa.

The Best Interests of the Child

67.     The third primary consideration is the best interests of the child.  I note 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”.

68.     In this case, while Mr Kaveh has no children, Ms Jin has a son, Shen Zheng, who is aged 15, from her previous marriage, whose interests must be considered, particularly as Ms Jin’s spouse visa application included her son.  Shen Zheng has lived all his life in China and has never been to Australia.  He has had limited contact with Mr Kaveh.  I do not consider that he would suffer any hardship if the visa were refused to Ms Jin.

Other Considerations

69.     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 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; genuine marriage to an Australian citizen, bearing in mind 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; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct;  and whether the application is for a temporary visa or permanent visa.

70.     Apart from Mr Kaveh, the visa applicant has no family or business connections in Australia that would be disrupted if the visa were refused.  Mr Kaveh’s family, with the exception of Ms Jin, all reside in Iran and would not be adversely affected if the visa application was refused.

71.     The marriage between Mr Kaveh and Ms Jin is undoubtedly genuine, but Mr Kaveh was aware before the marriage that Ms Jin did not have permanent residence in Australia and might not be able to obtain it.  His attempt to mislead the tribunal on that point is unimpressive and does nothing to assist his case.  Mr Kaveh said at the hearing that if a spouse visa were refused, he would go to live in China with his wife, where they have established a successful business and where all her family lives.  Nevertheless, his strong preference is that they should be permitted to live together in Australia, where they would like to start a family.

72. While I have found that the incorrect information supplied in connection with the transit visa application was not provided intentionally by Ms Jin or with her knowledge, she did apply for, and pursue through all stages, a protection visa knowing that she had no grounds for doing so and for the sole purpose of enabling her to remain in Australia. That contravention, in my view, is too serious to be outweighed by the other considerations in this case. At the same time, I do not consider that the degree of culpability was such that this enterprising and hard-working couple should necessarily be denied for all time the possibility of living together in Australia. As I understand it, there is nothing in the Act or regulations to prevent an offshore applicant who has been refused a visa on s 501 grounds from lodging a new application when further evidence becomes available, or for any other reason. As I have already said, there is evidence of reform and recent good conduct in this case. If that foundation can be further built upon by more evidence in the future, it may be that a decision-maker considering a new application might come to a different conclusion from the one I have reached. At the present, however, it is my view that the discretion in s 501 of the Migration Act should not be exercised in Ms Jin’s favour.

73.     The decision under review should therefore be affirmed.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  25 and 26 November 2004
Date of Decision  14 December 2004
Solicitor for the Applicant          Mr G Lewis, Lewis Law, solicitors

Solicitor for the Respondent     Ms J Maurer, Australian Government Solicitor's office