Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1038

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1038

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1523

GENERAL ADMINISTRATIVE DIVISION		)
Re		Pauk Lin Lee

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date1 October 2004

PlaceSydney

Decision The decision under review is affirmed.

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

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – spouse visa – subclass 309 spouse (provisional) visa – refusal of visa on character grounds – past and present general conduct including having an association with a person engaged in criminal conduct – examination of the visa applicant’s immigration history including the making of false statements – discretion that the Tribunal may exercise where the visa applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant and visa applicant – held the visa applicant does not pass the character test as he engaged in serious immigration misconduct – held that the refusal of a spouse visa may act as a dissuasion to others – held the community would expect that a visa should be refused despite the hardship that will follow to the applicant – found that there was insufficient evidence to support a finding that the marriage was not genuine but there is doubts as to its robustness and doubts about the visa applicant’s need to be in Australia to care for his wife – acknowledged that the applicant may suffer hardship in terms of her health if she were to live in China with the visa applicant – held that the primary considerations outweigh the other considerations – decision of the Respondent is affirmed.

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

Goldie v 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 Chavez and Minister for Immigration and Multicultural Affairs [2001] AATA 849

Re Evans and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 896

Re Hapugoda and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 330

Re McCutcheon and Minister for Immigration and Ethnic Affairs No 79/18006 (1979)

Re Mackney and Minister for Immigration and Multicultural Affairs [2001] AATA 472

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

Re Oksion and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 736

Re Reng Sheng Qiu v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] AATA 828

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

1 October 2004	Professor GD Walker, Deputy President
Summary

1.      The visa applicant, Lin Guo, who was born in China and is aged 32, came to Australia on 28 February 1996 on a short-stay visitor visa valid until 13 March 1996.  He subsequently applied for two protection visas which were refused.  Mr Guo remained in Australia unlawfully until he was located on 1 May 1999.  Mr Guo departed Australia on 1 June 1999 and on 21 November 2002, lodged an application for a subclass 309 spouse (provisional) visa.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Guo entered Australia using a false passport obtained with false documents and issued in a false name from a person involved in organised crime;  he applied for a protection visa in the false name;  he applied for a number of bridging visas in the false name;  he remained in Australia unlawfully and worked without permission while unlawful; and he made false and misleading statements in his spouse visa application.  The respondent therefore refused Mr Guo’s spouse visa application.  This is the decision to be reviewed by the Tribunal. 

Background

3.      The applicant, Pauk Lin Lee (also known as Pou Leng Lei), was born in Rangoon, Burma, on 12 September 1956 and is aged 48.  In April 1981, Mrs Lee married Cheuk Nim Lau.  Mrs Lee and her then husband migrated to Australia on 16 October 1982 and on 27 June 1983, she was granted Australian citizenship.  Mrs Lee’s first marriage ended in divorce on 1 October 1998.  Two children were born of the relationship, a daughter Lau Kareen, born on 11 July 1983 and now aged 21 and a son, Lau Derrick, born on 8 October 1984 and now aged almost 20.   Both these children reside in Melbourne, Victoria.  Mrs Lee is presently in receipt of a social security benefit.

4.      The visa applicant, Lin Guo, was born in Fuqing, People’s Republic of China, on 27 October 1971 and is aged 32.  On 13 April 1994, Mr Guo married Huang Min, the marriage ending in divorce on 29 May 2001.  Mr Guo has a son from this relationship, Guo Jian Qiao, who born on 24 September 1994 and is aged 10, who currently resides with Mr Guo in China. 

5.      On 8 February 1996, Mr Guo was granted a subclass 676 tourist visa, valid until 13 March 1996, in the name of Hui Jiang (“Jiang”).  He arrived in Australia under this false identity and with a false passport and visa on 28 February 1996 (T p254).  On 14 March 1996, Mr Guo, purporting to be Jiang, became an unlawful non-citizen (if he was not one before as a result of his false passport and visa).

6.      In April 1996, Mr Guo and Mrs Lee met at a Chinese restaurant in Melbourne, Victoria, and shortly thereafter they commenced a relationship (T p79).  In December 1996, Mr Guo moved to Sydney, New South Wales.  He continued his relationship with Mrs Lee by telephone.

7.      On 29 April 1997, Mr Guo, using the name Jiang, lodged an application for a bridging visa C with permission to work (S p382) and on 12 May 1997, Mr Guo, still using the name Jiang, lodged an application for a protection visa.  In his application, he claimed that he would be imprisoned and persecuted if he had to return to China because of his “religion, membership of particular social group and political opinions” (S p373).  On 13 May 1997, Jiang was granted a bridging visa C with a ‘no work’ condition, valid until 27 June 1997 (S p426). 

8.      On 19 June 1997, a case officer of the then Department of Immigration and Multicultural Affairs (“DIMA”) Onshore Protection Unit, refused Jiang’s protection visa application on the basis that his claims were very vague and that no evidence had been lodged to substantiate that he had personally suffered persecution at the hands of the Chinese government before his departure from China (S pp383-390).  The case officer also granted him a bridging visa valid until 28 days after the final determination of his claim (S p383).  On 27 June 1997, Mr Guo’s application for a bridging visa allowing him to work lodged on 29 April 1997 in the name Jiang, was refused (S p391).

9.      On 30 June 1997, Mr Guo, still using the name Jiang, applied to the Refugee Review Tribunal (“RRT”) for a review of the decision refusing his protection visa (S p394).  On 20 October 1998, the RRT affirmed the decision not to grant a protection visa, the applicant not having responded to an invitation to give evidence, on the ground that Jiang had not provided any meaningful information to indicate that his circumstances fell within the scope of the Refugee Convention (S p397).  On 24 November 1998, Mr Guo’s bridging visa issued in the name Jiang expired and he became once again an unlawful non-citizen in Australia.  On 25 November 1998, Mr Guo using the name Jiang, applied for Ministerial intervention (S p431).

10.     On 19 November 1998, Mr Guo lodged a second protection visa application using his true identity (S p400).   This was accompanied by a letter written by Mr Guo dated 17 November 1998, in which he stated that he told the migration agency his true identity but they did not use it, and that by lodging an application for refugee status, he was likely to incur further persecution if he had to return to China (S p398).

11.     On 21 December 1998, Mr Guo was granted a bridging visa D, valid until 26 December 1998, to allow the then Department of Immigration and Ethnic Affairs (“DIEA”) time to consider whether to accept his second protection visa application (S p427).   On 30 December 1998, an officer of DIEA decided that it was not in the public interest to accept a second protection visa application from Mr Guo (S p429). 

12.     On 27 December 1998, Mr Guo became an unlawful non-citizen in Australia.  Mr Guo remained an unlawful non-citizen until he was detected by immigration officials on 1 May 1999 and subsequently detained in the Villawood Immigration Detention Centre (T p34).  At an interview with immigration officials on 3 May 1999, he admitted that he had come to Australia using a false name and with a false passport, and that he had worked without permission in Australia including for his landlord and for a gyprock business (T6 p37).

13.     On 5 May 1999, Mr Guo was granted a bridging visa E subject to a ‘no work’ condition valid until 31 May 1999 and subject to a bond of $10,000.  On 12 May 1999, Ministerial intervention requested by Jiang was refused (S p431).  On 31 May 1999, Mr Guo was granted a further bridging visa E subject to a ‘no work’ condition valid until 1 June 1999 to allow him to depart Australia by that date.  On 1 June 1999, Mr Guo returned to China.  On 29 May 2001, Mr Guo divorced his first wife (T pp110-111).

14.     On 23 January 2002 (T p255), Mrs Lee departed Australia.  On 20 February 2002, Mr Guo and Mrs Lee held a wedding party and on 14 March 2002, their marriage was formally registered in Fuzhou City, China (T p105).  Mrs Lee returned to Australia on 20 March 2002 (T p255). 

15.     On 21 November 2002, Mrs Lee’s then solicitor, Peter Coroneos, of Coroneos & Company, lodged an application for a subclass 309 spouse (provisional) visa with the Australian Consulate in Shanghai, China (T p52).  On 4 March 2003, Mr Guo was interviewed by an immigration officer at the Australian Consulate (T p341).   At that interview, Mr Guo acknowledged that he bought the passport in the name of Jiang from “a snakehead, Mr Wang” (meaning a person engaged in organised crime) for “130,000 RMB in total” (T p342), who he had known when he lived in mainland China and who had come to his house to organise the passport.  Mr Guo also stated that if his spouse visa application were granted, his son would remain in China with Mr Guo’s parents.

16.     On 10 April 2003, a senior migration officer at the Australian Consulate advised Mr Guo that he was considering refusing his visa application and inviting him to comment and provide information concerning his intention (T19 p236).   On 28 May 2003, Mr Coroneos made submissions on behalf of Mr Guo, stating that his then client was deeply ashamed of his conduct, that his client left Australia when required to do so, and that Mrs Lee suffers from high blood pressure, high cholesterol and diabetes and is suffering anxiety at being separated from her husband and that a decision to refuse the visa would punish Mrs Lee and her children (T20 pp238-241).

17. On 11 August 2003, having considered Mr Guo’s submissions, a delegate of the respondent decided to refuse the grant of a visa to Mr Guo on the ground that he did not pass the character test because of his past and present general conduct including that he voluntarily associated with a person engaged in criminal conduct, and having declined to exercise her discretion under s 501(1) of the Migration Act 1958 (“the Act”).  On 24 September 2003, Ms Lee lodged an application for a review of this decision by this tribunal.

18. At the hearing, the applicant was represented by Ray Turner, solicitor, of Tzovaras Legal, solicitors, and the respondent was represented by Ishan Muthalib, solicitor, of Blake Dawson Waldron, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) and a supplementary set of documents (“the S Documents”), taken into evidence together as Exhibit R1, together with the evidence tendered by the parties at the hearing. Mrs Lee gave oral evidence in person and Ms Judy Chan and Dr Naomi Napper gave oral evidence by conference telephone. Mr Guo also gave evidence by conference telephone from China.

Relevant Law and Policy

19. 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 grounds in the current matter are paragraphs (b) and (c), as follows:

For the purposes of this section, a person does not pass the character test if:

…

(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(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; …

20. 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. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, 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.

21. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

20. The issue for the Tribunal to determine in this case is, therefore, whether Mr Guo is not of good character having regard to his past and present general conduct and his association with a person, group or organisation whom the Minister reasonably suspects of having been involved in criminal activities so as to be precluded from the grant of subclass 309 spouse (provisional) visa. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence at the hearing

22.     Ms Lee gave oral evidence.  A Cantonese interpreter was sworn in to assist her with giving her evidence.

23.     Mr Guo gave oral evidence via a telephone connection with China.  A Mandarin interpreter was sworn in to assist him in giving his evidence.

Evidence relating to the character test

(a)      Association with a person involved in crime

24.     The first limb of the Respondent’s case that the visa applicant is not a person of good character is that he has had an association with a person whom the Minister reasonably suspects of being involved in criminal conduct (s 501(6)(b)).  This is based on the fact that Mr Guo obtained his false passport and visa from Huang Zhong, a “snakehead”, meaning a person engaged in organised crime.  In his oral evidence Mr Guo said that he understood the term to mean specifically someone who arranges for people to migrate illegally.  In a handwritten statement dated 8 March 2004, the visa applicant stated:

The one who arranged people-smuggling [was] called “Huang Zhong”.  At that time Huang Zhong established a business in Yu Qi town [part of Fu Qing city, where Mr Guo’s town of Haikou is also located] … he was arranging [for] people to go or work overseas but at that time I did not know about this.  In the summer of 1995, I acquainted Huang Zhong in the street.  He asked if I would like to go to Australia. (T p150)

25.     At the hearing Mr Guo said that he was not aware that Huang was a criminal before departing for Australia, and indeed not until he returned from Australia in 1999.  His initial contact with Huang had been through buying coach tickets from his travel agency business in Yu Qi (or Yuxi) and that after that Huang had approached him in the street and asked if he wanted to go to Australia.  He said he could arrange for a Chinese passport and a visa for Australia.  Mr Guo gave him his Chinese identification card, photographs and other documents.  He said that in China it is necessary to apply for a passport through a travel agency, as the government will not issue one to a private citizen applying on his or her own account.  Nevertheless, he did not sign any Chinese government forms in connection with the application, nor did Huang ask him to do so.

26.     After paying Huang several large instalments of money which eventually totalled 130,000 RMB (about $25,000), he was told by Huang on 20 January 1996 to prepare to depart.  He informed his parents that he had received notification and that he was leaving for Australia where he was going to work for approximately two years.  His parents had replied they knew employment was difficult to find in their area and that it would be a good idea for him to leave and seek better opportunities in Australia.  He departed by car with Huang to Fuzhou, then by train for a further stage, then by car again to An Hui, where they stayed a few days in a hotel before boarding a flight to Hong Kong and then another flight to Sydney.  He did not think that circuitous route (which traversed almost the length of China in the wrong direction) strange because he had not travelled far before. 

27.     In cross-examination it was pointed out to him that at an interview conducted in China on 4 March 2003 (T pp341-343) he had said that someone had introduced him to Huang as a person who could arrange for people to travel to other countries. As he was in the habit of travelling to Yu Qi regularly, he came to know Huang there.  He had invited Huang to his home where they had discussed the proposal and Huang had at first asked him for 30,000 RMB, and later 75,000 RMB.  At the hearing he denied that account and maintained that his contact with Huang had arisen solely through the purchase of coach tickets, but was for a time unable to name a destination for any of the tickets he claimed to have bought.  Eventually he said that he had bought a ticket to Xiamen but could not remember the reason why he had gone there.  He also said for the first time that he had obtained the 130,000 RMB from his parents, who had borrowed it from relatives.  That did not sit easily with his account of the conversation with his parents shortly before his departure.  The idea that it did not occur to Mr Guo or either of his parents that the transaction was a highly suspicious one is also hard to accept, particularly in light of what is known about Fuqing City’s role as a major centre for the people-smuggling traffic, of which more is said below.

(b)      Past and present general conduct

28.     In applying the character test, the tribunal is required by s 5016(c)(ii) to have regard to the person’s past and present general conduct.  Direction No 21, paragraph 1.9 requires the tribunal to consider a number of matters relevant to that issue, including involvement in activities such as organised crime and breaches of immigration law.  In that connection the respondent puts forward these contentions:

(a)the visa applicant engaged the services of a people-smuggler and obtained a false passport and visa to enter Australia;

(b)the visa applicant entered Australia using a false passport in breach of s 234(1)(a) of the Act;

(c)         the visa applicant used a visa issued to another person Hui Jiang and travelled to Australia and identified himself as that person in breach of s 236(1) of the Act;

(d)the visa applicant had a visa in his possession and under his control and that visa was granted to another person (Hui Jiang) and this was in breach of s 236(2) of the Act;

(e)the visa applicant made false and misleading declarations in a protection visa application (subclass 866) dated 12 May 1997, including that:

(i)      his name was Hui Jiang;

(ii)     his date of birth was 27 November 1962; and

(iii)he was persecuted in China because of his religion, inter alia,

in breach of s 234(1)(b) of the Act;

(f)the visa applicant sought review at the RRT of the decision to refuse the protection visa application;

(g)the visa applicant remained in Australia as an unlawful non-citizen on three separate occasions, which cumulatively amounted to a period of approximately 19 months;

(h)while an unlawful non-citizen the visa applicant worked in Australia without lawful permission to do so in breach of s 235 of the Act;

(i)the relationship between the review applicant and visa applicant is not genuine and was entered into for the purposes of facilitating a migration outcome. 

29.     The applicant’s statement of facts and contentions did not put forward any argument on the character issue.  At the hearing, however, while not disputing the particular breaches listed by the respondent, the applicant’s solicitor argued that they did not necessarily lead to the conclusion that the applicant failed the character test.  He had been recruited by a people-smuggler, had become caught in a web of deceit and remained so until he had been able to tell the truth to departmental officials.  His conduct up until 1999 was reprehensible, but he was in part a victim of crime who had become entrapped because of naiveté and foolishness.  The inconsistencies in his accounts of the events surrounding his arrival and stay in Australia were immaterial and tended if anything to show the truth of his account at the hearing.  He had genuinely tried to correct the record and put his presence in Australia on a lawful basis.

30.     There were indeed many inconsistencies and contradictions in Mr Guo’s accounts.  The main ones were put to him in cross-examination, but his tendency to give long and unresponsive replies to straightforward yes-or-no questions, even when the question was repeated, raised practical obstacles to canvassing them all in detail. 

31.     The narrative of his journey from Heiko Town to Australia also contains material inconsistencies or improbabilities.  In oral evidence Mr Guo said that he and Huang alone had left Heiku Town by car and proceeded, by several stages, to An Hui.  At the hotel in An Hui, he had not had the opportunity of meeting or mixing with other members of the party that was to travel to Australia, and indeed did not learn that he was part of a group until shortly before leaving for An Hui airport.  In his written statement of 8 March 2003, however, he said that he departed with about 20 other people, who followed Huang to An Hui, where they stayed for two days before taking the flight from An Hui to Hong Kong (T p67).  His explanation for the difference between these two versions was that when he wrote the statement he used “different words” and described the events wrongly, but was now telling the truth.  I consider the earlier written version more likely to be the truth.  It seems improbable that Huang would travel with only one other person when he had a party of at least 20 to shepherd to An Hui.  The difference between the two accounts is significant, for of course if he had been travelling with a group from his home town via a circuitous route to An Hui, he would have had ample opportunity of discussing the features and incidents of the enterprise with other members of the group. 

32.     In his oral evidence he said that he did not realise he was going to be travelling on a false passport until he arrived at An Hui airport.  He boarded the flight, nevertheless, because the party was being told to hurry on, but said he knew when he boarded that it was an offence in China, and indeed all other countries, to travel on a false passport.  In light of his unconvincing attempt to change his story at the hearing, it seems most unlikely he was taken by surprise when he saw the false passport and the false visa on which he was to travel to Australia. 

33.     The applicant attempted to explain the false information in his passenger arrival card by saying that the flight attendant completed the card for him, except for the signature, because he was unable to write English.  Nevertheless it was he who knowingly gave her the false information contained in his passport, together with the statement that he intended to remain for only eight days.  When it was squarely put to him that he had lied in his passenger card, he replied, after a twenty-second pause, that he had.

34.     He also admitted that he made an application for a protection visa that was false in relation to his name, date of birth and the allegations that he was persecuted in China inter alia because of his religion, conceding that he had no fear for his safety in China and had not had any problems with the government.  He admitted that he had worked unlawfully, and had indeed intended to work in Australia from the outset, but said that he had no choice.  He also admitted that he had stayed unlawfully in Australia but claimed that he did not know he was unlawful while in Melbourne during the period from February to December 1996.  That is not credible, as he knew that he was in Australia under a false passport and a visa issued to someone else and was well aware of the illegality of such conduct. 

35.     Except for the two periods when he was granted a bridging visa, he remained unlawfully in Australia until he was apprehended on 1 May 1999.  Even then, he attempted to maintain the deception until questioning by departmental officers forced him to admit that he entered Australia under a false passport and was still using that identity (T pp34-35).  At that time he also claimed that he had lost his passport and that the loss had been reported to the police (T p34).  At the hearing he admitted that he had not lost the passport but had given it to Huang, who had not returned it.

36.     In relation to the false statements in the protection visa applications, Mr Guo maintained that he had signed blank forms and that the migration agents had filled in the information.  It was pointed out to him that the first protection visa application showed his wife’s and sons’ correct given names together with the false surname.  He replied that he gave the first agent correct information but had signed the form in blank.  There was considerable cross-examination about his three addresses in the Sydney area as shown on the two protection visa applications, Nicholson Street and Waimeea Street, Burwood, and Enmore Road, Enmore.  He claimed that his first migration agent made up the Nicholson Street address, the second agent invented the Enmore Road address and he had never lived at either place and did not know those addresses.  That was most implausible, especially given that the department’s letter notifying him of the rejection of his first protection visa application was addressed to him at Nicholson Street.  The question of his correct address in Sydney was material to the issue of his relationship with Mrs Lee. 

37.     Mr Muthalib for the respondent argued that Mr Guo’s evidence displayed a consistent pattern of seeking to blame others for his alleged admitted violations of the immigration laws.  The evidence supports that view.

Evidence relevant to exercise of the discretion:  the marriage

38.     As Mr Turner pointed out when opening his case on behalf of the applicants, much of the evidence was to relate to the effect of refusing a visa on Mrs Pauk Lee and this would entail an examination of the marriage between her and Mr Guo.  The migration regulations concerning the validity and genuineness of marriages did not apply in the present case, but the evidence about the marriage would affect the weight of the applicants’ contentions relating to hardship. 

39.     Mrs Lee met Mr Guo in April 1996 when they were both working at a restaurant in Melbourne.  Mrs Lee’s husband also worked at that restaurant and he continued to live with Mrs Lee until they separated after the divorce in 1998.  In early 1997, however, they commenced to lead separate lives under the same roof, and Mr Lee had for some time been spending periods of one or two days away from the home with another woman.  Mr Guo said that the relationship began by Mrs Lee helping Mr Guo to become established in Melbourne, and assisting him to purchase daily necessities and find his way around.  At that time he was living in a kind of dormitory operated by the restaurant owner, and would from time to time come and stay at Mrs Lee’s house when her husband was away, to keep her company and chat with her and feed the children.  The relationship became intimate at the end of 1996 shortly before Mr Guo moved to Sydney.

40.     Previously, both applicants had maintained that they had been living together in Melbourne, but at the hearing Mrs Lee, when asked whether Mr Guo lived in her Melbourne house in 1996, replied that she could not remember.  This was one of a number of points in her examination when Mrs Lee claimed that her health problems had seriously impaired her memory.  When later asked again whether Mr Guo lived with her in Melbourne, Mrs Lee, after a long pause and a lengthy non-responsive explanation, conceded that he had not been living with her in 1996 but had visited for one or two days at a time.  She had known from the outset that he had come to Australia on a false passport in another name.  Mr Guo conceded in cross-examination that, contrarily to his earlier statements, he had not lived with Mrs Lee in Melbourne.

41.     Mr Guo moved from Melbourne to Sydney in January 1997.  For this move he gave the not altogether convincing reason that he was unable to find employment in Melbourne.  Mrs Lee said that while he was living in Sydney she travelled from Melbourne every school holidays in order to be with him, usually taking the children with her.  She was quite definite that she stayed with him in Sydney only at one particular address where he was living in Burwood.  This was difficult to reconcile with Mr Guo’s evidence that he lived for substantial periods at another address in Burwood, and possibly two others.  There was substantial cross-examination on this point, but Mr Guo seemed unable to give a clear statement of exactly where he had lived in Sydney and for what periods.  The true situation would appear to be that Mrs Lee did spend school holiday times in Sydney with Mr Guo more than once, but not, contrarily to her assertion, during every school holidays over that period. 

42.     After Mr Guo returned to China on 1 June 1999, Mrs Lee said, they kept in touch every day, and often several times a day, by telephone.  She telephoned him, rather than the reverse, because of the high cost of phone calls in China.  On 23 January 2003 Mrs Lee travelled to China with her children to stay with the visa applicant, returning on 20 March 2003.  During her time in China she married Mr Guo and the union was duly registered with the Chinese government authorities. 

43.     Mrs Lee stressed that since the marriage, she and her husband had kept in touch almost daily by telephone, and on his part by letters or cards, though this was complicated somewhat by his difficulty in writing in Cantonese.  His oral evidence, however, was that there were communications “sometimes frequently, sometimes every few months”.   Exhibit A5 consisted of the envelopes used by the parties to send parcels, letters or cards to each other.  The majority of them are from Mrs Lee to Mr Guo. Mrs Lee insisted that the marriage was genuine, as did Mr Guo, and she said they wanted nothing more than to be reunited in Australia as a family.  In her written statement of 14 May 2003 Mrs Lee stated that:

Because I am weak in health and in those two or three years when we were living together, Guo Lin has taken care of me.

Not only is it plainly untrue to say that they lived together for two or three years, but there is no evidence he has ever taken care of her in that way, or that he aspires to such a role.  Indeed, it was noticeable that he was not invited by his solicitor to say anything about how he proposed that they should live in Australia, whether he would be able to find work, given his lack of English, where they would live or how they would maintain themselves financially.  Nor was there anything in the documentary evidence on those topics.  In his closing address, his solicitor argued that if this was not a genuine marriage, one would expect to see some gain accruing to Mrs Lee.  In this case, however, all the gain appeared to be going from her to him.  That contention seems to be true, but perhaps not quite in the way intended.  There have been from the outset some doubts about the depth of Mr Guo’s commitment, in view of the fact that when located in May 1999 Mr Guo was unaware of Mrs Lee’s date of birth; his explanation that this was the result of nervousness is implausible.  Again, at the hearing he was uncertain of her age, saying that she was “ten or twenty years older” than he.  The evidence showed that Mrs Lee had sent Mr Guo some birthday presents.  When asked whether it is the custom in China to give birthday presents, she made a long and rather ambiguous reply, perhaps endeavouring to forestall any adverse comment about the strength of the relationship arising from her husband’s ignorance of these personal details. 

Other evidence relevant to hardship:  Mrs Lee’s health problems

44.     Dr Naomi Napper was called by Mrs Lee to give medical evidence.  Dr Napper said that Mrs Lee currently suffers from insulin-dependent type 1 diabetes associated with bilateral retinopathy, high cholesterol and hypertension.  She also suffers from spondylosis of her cervical spine.  Until 2003, her diabetes had been of the non-insulin dependent type 2 form, the less serious type of diabetes, but it had become more serious earlier this year and was now type 1.  Professor Dennis Yue had commenced her on insulin injections in July this year.  He had considered that from the condition of her retinas, she had probably been suffering from a mild form of diabetes for some years.  She also suffers from depression.

45.     The applicant also called a clinical psychologist, Ms Judy Chan, who confirmed that Mrs Lee is suffering from depression.  She said that there is no single cause for depression but it can be affected by such factors as separation or loss.  In Mrs Lee’s case there were two separations involved: since moving to Sydney she had left her living environment and her children in Melbourne.  Further, she had been separated for two years from her husband.  Thus there were two separations close to each other.  Removing one separation would help, and while Mr Guo’s return to Australia could not be guaranteed to alleviate her condition, it would increase the chances of her getting better sooner.  It may be noted that one separation would be removed if Mrs Lee were to return to Melbourne and live near her children.  The reason she gives for relocating to Sydney in 2002 was that she wanted to live near a migration lawyer who had been recommended to her, but who, in the event, did not represent her at the hearing.  It seems hard to believe that with her network of business and other contacts she could not have found a suitable migration lawyer in Melbourne.  Even if she were determined to engage a Sydney lawyer, modern communications could surely have obviated the need to take up long-term residence away from her children and familiar surroundings.

46.     Ms Chan was asked about the sentence in her report dated 9 August 2004 (Exhibit A4) in which she had written:

She met her husband in Australia in 1996 and they had been living together for several years before she was married in China.

She said that was what Mrs Lee had told her and she had no cause to doubt her, but definitely gained the impression that Mrs Lee and her husband had “constant relating together” and “consistent contact not just by phone”.  “The impression I got was more of physical contact”, as in living together.  Ms Chan also said that Mrs Lee’s depression should not affect her recall of events even ten years ago, but could influence her access to such memories because of lessened concentration.

47.     Ms Chan did not know that Mr Guo was refused a visa.  Mrs Lee had given her the impression that they were in the process of applying for him to migrate to Australia.  She conceded that the reasons for the refusal might contribute to her depression, but could not give a definite opinion because she did not know what the reasons were. 

48.     In her own oral evidence Mrs Lee said that she would find it difficult to live in China because the medicines are different and not really suitable for her.  During her stay in 2002, she had suffered problems with her digestion and general health.  Twice she had run a temperature and had visited a local doctor.  When she returned to Australia she saw a doctor and found that she was once again in reasonable health.

49.     While in China, she said, she had been required to undergo a routine pre-marriage medical check at the local hospital.  In the course of that examination the doctors had found that she was suffering from diabetes, but she did not believe them.  On returning to Australia, she said she consulted a doctor and found that she had serious diabetes.  Before going to China she only had a slight case of it, but it became worse in China.  When she was asked in cross-examination whether she knew before leaving for China that she had diabetes, she replied after a long pause that she could not remember.  After the luncheon adjournment, however, Mrs Lee said that she had been told she had mild diabetes in 2001, before going to China.  On returning to Australia she experienced some dizziness and went to see a doctor about it.  She was then told that she had serious diabetes. 

50.     The applicant tendered some letters dated 22 and 23 March 2004 from the Kaikou, Yuxi and Xincuo hospitals stating that they had never purchased or sold any of a list of eight medications used by Mrs Lee, including Diamicron, but not including insulin.  Mrs Lee had sent the labels and packaging for those products to Fuqing to permit their proper identification.  The medications appear to have been described by their trade names and it is not clear whether generic drugs with the same composition could be obtained.  Other evidence indicated that branded western therapeutic drugs are available in China on the open market, but are expensive.  As diabetes is a growing problem in China, however, the government is committing more resources to its treatment.

51.     When asked whether her family could arrange for her medicines to be sent to China for her, Mrs Lee replied that she could not always depend on her niece to do such things, as her niece now had her own family, and her children could not undertake that task.  She offered no reason why that might be the case.  The evidence did not show that there was any legal obstacle to sending the products to Fuqing for Mrs Lee. 

52.     Mrs Lee’s daughter Kareen Lau and her niece Chau Yan Lee both made signed statements which were lodged in the proceedings (Exhibits A8 and A7 respectively).   Both accompanied Mrs Lee on her visit to China in 2002, but neither statement mentions that Mrs Lee suffered any health problems while in China.

53.     Dr Napper’s evidence was consistent with that.  Mrs Lee had come to see her for the first time on 29 May 2002.  The reason she visited Dr Napper was to have a PAP test and there was no mention of diabetes at that first time nor, according to the doctor’s notes, did she say anything about her trip to China.  Dr Napper administered a routine blood test but did not obtain the results until the following day, 30 May.  When she saw the results she knew that Mrs Lee had non-insulin dependent type 2 diabetes.  Mrs Lee did not return for another visit until 8 November 2002.  On that occasion Dr Napper told her of the test result and asked her if she had received any earlier treatment for diabetes.  From that discussion it appeared she may have been on Diamicron in the past, perhaps twelve months earlier, but she had not taken any tablets for some months.  Dr Napper said that Mrs Lee could have had mild diabetes for some years without experiencing any symptoms, and added that diabetes is common among Asians.  At the consultation on 8 November a management plan was discussed and, as was usual, Mrs Lee’s niece translated everything for her.  A further report on 12 May 2003 confirmed the presence of non-insulin dependent type 2 diabetes.

54.     The medical and other evidence points to the conclusion that Mrs Lee may have been suffering from symptomless type 2 diabetes before her departure for China in 2002.  She must have been unaware of her condition, for otherwise she would have had no reason to disbelieve the doctor in China who informed her of the diagnosis and prescribed some oral medication, which may have been a form of Diamicron.  Mrs Lee chose not to take the medication, at least not regularly, presumably because she had no noticeable symptoms.  Whatever health problems she may have experienced in China do not appear to have caused her particular concern, because at her first visit to Dr Napper on 29 May she did not mention diabetes, her trip to China or any other health issues, having come solely for the purpose having a routine test.  She remained relatively unconcerned about her health until at least November 2002 when she returned to see Dr Napper.  There is no medical evidence that she experienced any new or aggravated health problems in China, though it is likely she suffered the kind of indisposition commonly experienced by travellers in other countries.

Application of the Law and Findings

55. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(b) and (c)(ii), Mr Guo passes the “character test” having regard to his past and present general conduct and association with a person, group or organisation whom the Minister reasonably suspects of being involved in criminal activities. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

56. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Mr Guo does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

57.     In Part 1 of Direction No 21 the Minister provides the following guidance as to the meaning of “association”:

1.5The meaning of ‘association’ for the purposes of the Character Test encompasses a very wide range of relationships including having an ‘alliance’ or a ‘link’ or ‘connection’ with a person, a group or an organised body that is involved in criminal activities.  ‘Association’ does not require actual membership of a group or organised body that is involved in criminal activities.  In establishing criminal association, the decision-maker may have regard to the following:

(a)the degree and frequency of association the non-citizen had or has with the individual, group or organisation;

(b)       the duration of the association; and

(c)       the nature of the association.

1.6In some cases the information concerning the association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other person at risk.

58.     I note, as Deputy President Forgie recognised in ReHapugoda and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 330 at paragraph 54, that s 501(6)(b) states that “a person does not pass the character test based solely on an association a person ‘has had’ with a person whom the Minister reasonably suspects ‘has been … involved in criminal conduct’. That is so without regard to the currency of the person’s present association or the person’s conduct generally.” Thus any past association with someone the Minister reasonably suspects of criminal conduct is enough in itself to cause the person to fail the character test.

59. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

60.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

61.     Before making a decision on whether Mr Guo passes the character test, it is appropriate to set out my findings of fact on that issue.  I find that the visa applicant committed a number of breaches of the immigration legislation.  He engaged the services of, and had more than a fleeting association with, a person he knew to be a people-smuggler.  Mr Guo obtained from him a false passport and visa to enter Australia, he entered Australia using a false passport and visa issued to another person, and identified himself as that person.  He had in his possession and under his control a visa granted to another person, he made false and misleading declarations in a protection visa application dated 12 May 1997, including as regards his name, his date of birth and that he was persecuted in China inter alia because of his religion, when there is no evidence, even from the applicant himself, that he was persecuted for any reason; he overstayed his tourist visa and two bridging visas for a total period of approximately 19 months; and made no attempt to depart until he was detected by compliance officers; while an unlawful non-citizen he worked in Australia without lawful permission to do so, and indeed at all times intended to work when he came to Australia on his tourist visa.  The respondent contended in Exhibit R2 that the marriage between the applicant and the visa applicant is not genuine and was entered into for the purpose of facilitating a migration outcome.  I will have more to say on that question later in these reasons.  I conclude on the basis of these associations, multiple breaches and instances of deceitful conduct that the visa applicant is not a person of good character.

62. Having decided that Mr Guo does not pass the character test by reason of his misconduct and abuse of Australia’s migration system, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Mr Guo. In exercising this discretion, the Tribunal has 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.

63.     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.

Paragraph 2.4 explains:

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.

64. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

65.     With regard to paragraph 2.5(b), likelihood that the 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 similar offence”. 

66. As regards the first primary consideration, 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 very serious. I find that the visa applicant’s breaches of the Migration Act, both individually and especially cumulatively, are particularly serious. On the basis of Re Mackney andMinister for Immigration and Multicultural Affairs [2001] AATA 472 and Re Evans andMinister for Immigration, Multicultural and IndigenousAffairs [2003] AATA 896, Mr Turner contended that Mr Guo’s false statements in his protection visa application and his attempted second application should be viewed as the result of “an agent scam”. Some of the statements, such as those relating to addresses, were not material or could have stemmed from the possibly ambiguous wording of the application form. The latter proposition could be true as regards some of the addresses, but as is pointed out elsewhere in these reasons, Mr Guo’s true Sydney addresses in Sydney are relevant to the issues in this case. Further, Re Mackney (supra) concerned not false statements of fact, but an exaggeration about the import of true facts. 

67.     It is also hard to see how Mr Guo’s first agent could have inserted a claim of persecution of the grounds of, inter alia, religion if he had not discussed the question of religious affiliation with Mr Guo.  Mr Guo claimed and still claims to be a Christian but I am not persuaded of that.  There is nothing in any of the evidence about his membership of, attendance at, or other contact or identification with any church or religion.  Further, Chinese law on the regulation of religion treats Catholicism and Protestantism as separate religions (the other officially recognized faiths being   Buddhism, Islam and Taoism).   Some evangelical Protestant churches choose not to register for a variety of reasons, but if Mr Guo were a member of one of those denominations one would expect him to be even more conscious of his affiliation and to name his church specifically rather than simply describing himself as a “Christian”.  More importantly, Mr Guo has admitted that he did not suffer from any form of persecution before he came to Australia or after he returned to China.  He plainly knew that he was claiming refugee status on non-existent grounds.  That is a very serious breach of the law.

68.     In further support of the argument on the first primary consideration, it was submitted that the Minister’s failure to prosecute Mr Guo showed that his transgressions were not really viewed as serious.  Reliance was placed on a brief reference to the lack of criminal prosecution in ReChavez and Minister for Immigrationand Multicultural Affairs [2001] AATA 849, para 34. In that case the contraventions, visa overstay and unlawful working, were less serious than those in this case. Further, like any other prosecuting authority, the Minister has a complete discretion as to when and whether to bring proceedings. Criminal prosecution is highly resource-intensive, and in any given case the Minister may properly decide for any one of a number of reasons to use the remedy of visa refusal instead. Nor does Re Oksion and Minister for Immigration, Multicultural andIndigenous Affairs [2003] AATA 736 assist the applicant, for the wrongful conduct in this case has persisted over a long period. Mr Guo attempted to maintain his deception when questioned by the officers who apprehended him, and in my view was less than truthful in his evidence at the hearing.

69. Further, the visa applicant’s willingness to deal with a criminal, and the fact that his breaches of the Migration Act were multiple, varied and recurring over a significant period of time lead me to conclude that there is a real risk that he would commit similar offences in the future or would engage in misleading or deceptive conduct in breach of other Australian laws.

70.     On behalf of the applicant Mr Turner submitted that while Huang was indeed a people-smuggler, he was also a recruiter who had drawn Mr Guo into a web of deceit and had withheld the false documents until the last moment.  Mr Guo was a victim of crime, and a victim of crime could not fail the character test because of an association with a criminal.  It is true that Mr Guo was financially exploited by Huang, and in that sense he was a victim.  But criminals who supply prohibited goods and services usually exploit those foolish or dishonest enough to deal with them.  The question is whether Mr Guo was a knowing participant in the unlawful scheme.  For the reasons given above, I find that he was.  As Handley DP noted in Re Barnett andMinister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065, Fujian province is notorious for the use of false passports. Re Reng Sheng Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828, in which Block DP affirmed a decision to refuse a spouse visa, also involved a false passport and visa obtained in Fujian. Mr Guo was aware that he was unlikely to obtain a Chinese passport lawfully, and it is inconceivable that neither Mr Guo, nor either of his parents, who supplied the money and were educated professional and business people, could have been unaware that they were assisting a criminal enterprise.

71.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that 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.  Mr Turner referred to Re McCutcheon and Minister for Immigration and Ethnic Affairs No 79/18006 (1979) in which Davies J said that deterrence should not be the dominant factor justifying deportation, otherwise it would serve as a further punishment, and the Migration Act provisions are no part of the criminal law. Re McCutcheon was a deportation case strictly so called, not a visa refusal or cancellation. But Mr Turner argued from that reasoning that any notion of reward or punishment was foreign to s 501 and Direction No 21 and should play no role in a decision under those provisions. That conclusion does not follow, however. The treatment of visa refusal in paragraph 2.11 can have no rationale other than the principle that persons who violate the Migration Act or other laws should not receive the same benefits as intending immigrants who have applied honestly and acted lawfully. Further, the concept of penalties and rewards is not confined to the criminal law. Indeed, there is no escape from the operation of incentives, positive or negative, anywhere in the legal system. The unenforceability of illegal contracts, the use of constructive trusts as a remedy for wrongful behaviour, the right to abate a nuisance or the exclusion of unlawfully obtained evidence all reflect that concept in widely separated areas of law. In this case I conclude that refusal of a spouse visa may dissuade others from committing similar acts and from engaging the services of criminals who practise people-smuggling.

72.     With regard to 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.

73.     In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it.  That expectation weighs against the grant of a visa in this case. 

74.     The third primary consideration is the best interests of the child.  The applicant did not argue this issue, but for the sake of completing the background to this case, the evidence on this point may be outlined.

75.     Mrs Lee has two children from a previous relationship, Lau Kareen who is 21 and Lau Derrick who is almost 20.  As they are now over 18 and not living with their mother Mrs Lee, their interests are not a primary consideration.  Mr Guo has one child, a son, Guo Jian Qiao, who is aged 10.  A divorce document from the Intermediate People’s Court of Fuzhou City, Fujian Province, China, provides that Mr Guo “will foster and educate the son of the marriage, Guo Jianqiao” (T p111).  Mr Guo stated in his record of interview with an officer of the Australian Consulate in Shanghai that during the time he was living in Australia, the child resided with the child’s mother, but that since returning to China, the child has returned to reside with him.  Mr Guo also stated at that interview that he did not include Guo Jian Qiao in his application and that if he is granted a visa, the child will remain in China and live with his grandparents (T p342).  Apart from when Mrs Lee visited Mr Guo in China for about six weeks in February/March 2002, she has had no other personal contact with Mr Guo’s son.  I do not accept that she could have developed a genuine maternal relationship with him in that short time, especially as Jian Qiao has spent most of his life with his real mother.  He has never been to Australia and has no other connection with Australia.

76.     Paragraph 2.15 of Direction No 21 states that: “In general terms, the child’s best interests will be served if the child remains with its parents”.  It is the applicants’ intention that if a spouse visa is granted to Mr Guo, his son Jian Qiao will remain in China where his mother and grandparents live.  The evidence suggests that Jian Qiao would not be harmed by the refusal of a visa in this case, and indeed could benefit if he were able to continue living with his father in China as at present.  The presumption in paragraph 2.15 also points in that direction. 

77.     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; and any evidence of rehabilitation and any recent good conduct.  A refusal to grant a visa in this case would not disrupt Mr Guo’s family, all of whom, except for the applicant, live in China.   Mrs Lee would be separated from her adult daughter and son if she were to move to China. The other question is disruption of the marriage between the applicant and the visa applicant.  The parties met in Melbourne in April 1996, a month after the visa applicant’s false visa ostensibly expired.  At that time both parties were still married to their original spouses.  Six months after the relationship began, the visa applicant moved to Sydney, where he remained until he was detained and subsequently returned to China.  The parties were married in China on 14 March 2002 while the applicant was on a two month visit to that country. 

78.     The respondent contended in its statement of facts and contentions (Exhibit R1) that it is not a genuine marriage and was entered into for the purpose of facilitating a migration outcome.  The respondent points to the fact that the applicants lived in different states except for the initial six months of their relationship, that Mr Guo left Australia in June 1999 but did not divorce his former wife until May 2001, and that when Mr Guo was detained by departmental officers on 1 May 1999 he did not know the birth date of the review applicant.  The second point needs to be qualified by the fact that the applicant did lodge a divorce petition in China on 24 June 1999, but it was rejected by the court.  The other facts alleged, however, are correct.

79.     The applicant in her statement of facts and contentions (Exhibit A1), prepared by her then solicitor, Peter Coroneos, however, rejects the respondent’s conclusion that the marriage is not genuine and point to the visa applicant’s visit to China in 2002, to her numerous telephone calls to her husband, to the birthday presents she sent him, to photographs of the two spouses together and the opinions of her daughter and niece, who accompanied her to China at that time.

80.     At the hearing, the respondent’s representative stated that the issue of the genuineness of the marriage would not be pressed, but there were nevertheless doubts about the relationship.  He pointed to the conflicting evidence that had been given by the applicant and the visa applicant as to whether they had lived together prior to their marriage.  Mrs Lee said in a letter to the Department dated 14 May 2003, that she and Mr Lee had been living together for two or three years (T p243).  However, when questioned, Mrs Lee said they did not live together, but that she and her children lived in the former matrimonial home where Mr Guo would come to visit her when her husband was away.  When Mr Guo moved to Sydney, Mrs Lee and her children visited him every school holidays in 1997, 1998 and the beginning of 1999.  Mrs Lee stated that she had only ever stayed with him in the one house, at Burwood, during her visits.  Mr Guo, on the other hand, from the start gave evidence that they did not live together.  He said that he used to visit Mrs Lee when her husband was away, as a friend.  They did not have an intimate relationship until shortly before he left Melbourne because he felt they should get to know each other.  He gave evidence that when he moved to Sydney, while he always lived in the suburb of Burwood, he actually stayed at three different addresses.  Mrs Lee said she visited only one.

81.     The respondent highlighted the fact that Mr Guo did not know the date of birth of his wife when asked by immigration officers at an interview on 1 May 1999.  When asked about this at the hearing, Mr Guo explained that he was nervous on that occasion.  However, at the hearing, he said only that she was “10 to 20 years older” than he.

82.     The applicant’s submitted that the issue of whether the parties had lived together was irrelevant.  The marriage was on record now for at least two years and was genuine and would be found so if the matter were to come before the Migration Review Tribunal (“MRT”).  He also contended that there would have been no benefit to Mr Guo in entering into a marriage with Mrs Lee simply to migrate to Australia because she has two children and is seriously ill and requires care.  It is plain, on the other hand, that there would be a benefit to Mrs Lee, especially when one considers  the fact that Mrs Lee is now ailing and less able to care for herself.  It may also be noted that while Mrs Lee stated that she wants Mr Guo to be allowed to come to Australia to live with her and her children so that they can be a complete family, and Mr Guo can take care of her, Mr Guo did not give any evidence of needing to be in Australia to care for his wife.

83.     There is no evidence that the parties have ever maintained joint household or financial relations, but both say they are dependent on each other for emotional support and companionship.  The applicant also implies that she needs Mr Guo in Australia to take care of her because of her health problems.  In her written statement (Exhibit A2) Mrs Lee said that she thought Mr Guo was lawfully in Australia when he was detained on 1 May 1999 because after meeting with a migration agent named Champ Qiao in late 1998 Mr Guo believed he could lawfully remain in Australia.  There is, however, no possible way in which he could have been under that mistaken belief before then, when he knew he was in Australia on a false passport and false visa.  As he admitted at the hearing, Msr Lee was aware from the start of their relationship in 1996 that Mr Guo was in Australia on a false passport.  She must surely have been aware that his presence in Australia on that basis would be unlawful.

84.     The evidence is insufficient to support a finding that the marriage is not genuine, but given the apparent lack of common plans and aspirations, the asymmetry of the evidence of mutual commitment and the other matters mentioned earlier, there must be some doubts about its robustness.

85.     The other aspect of hardship relates to Mrs Lee’s health problems.  While the evidence does not support her claim that she knew she was mildly diabetic from 2001 onwards, there is no doubt that this year she has developed insulin-dependent type 1 diabetes.  She also undoubtedly suffers from the other complaints mentioned above.  Mrs Lee said that the sickness she experienced while in China in 2002 showed that she could not live in that country.  Again, the evidence does not support her claim that she suffered any significant health problems during that period, but on the other hand I accept that while insulin is apparently available, three local hospitals have not carried the named medications that she is currently taking.  What is not clear is whether corresponding generic drugs are available, or are likely to become so now that the Chinese government is expanding its diabetes treatment programs or whether trade-named Western medications are available at a price Mrs Lee could afford.  Mrs Lee appears not to have investigated the possibility of her family’s arranging to have such products sent to her if she were to move to China to join Mr Guo.  Nevertheless, it is safe to conclude that Mrs Lee would suffer some hardship as a result of her health problems if Mr Guo were refused a spouse visa and she were to relocate to China. 

86.     The relocation itself would be disruptive, but against that, Mrs Lee’s cultural background is preponderantly Chinese, she lived for 10 years in Macau, she mainly speaks Cantonese and has very little English.  Added to that is the important fact that from the time she first met Mr Guo she knew he was in Australia on a false passport, that he was not a refugee and that accordingly there was a strong possibility that he would never receive a visa to remain in or return to Australia.  Yet she chose to develop a relationship with him.  Presumably she was also aware that he had a wife and child in China, and as the history of the case indicates, divorce applications are not automatically granted in China. 

87.     The marriage of Mrs Lee and Mr Guo may be disrupted if a visa is refused, and Mrs Lee will suffer some hardship by reason of her health problems if she moves to China.  Those matters invoke sympathy and merit compassionate consideration.  Nevertheless, they stem from choices freely made by the parties in full knowledge of the facts and of the risks involved.  They do not outweigh the two primary considerations discussed above.  In my view the decision under review should be affirmed.

I certify that the 87 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  1 and 2 September 2004
Date of Decision  1 October 2004
Solicitor for the Applicant          Mr R Turner, Tzovaras Legal
Solicitor for the Respondent     Mr I Muthalib, Blake Dawson Waldron