Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1308
•6 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1308
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1788
GENERAL ADMINISTRATIVE DIVISION ) Re RENG SHENG QIU Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date6 August 2004
PlaceSydney
Decision The decision under review is affirmed.
………………………………….
Deputy President J. Block
CATCHWORDS
IMMIGRATION – Application for Provisional Spouse Visa – Visa refused under section 501 of the Migration Act 1958 – evidence assessed – consideration of Direction No. 21 – Visa Refusal and Cancellation under section 501 of the Migration Act 1958 – factors considered – conduct of the Visa Applicant considered – issue of deterrence analysed – expectations of the Australian community considered – best interests of the child of primary consideration – discretion not exercised in favour of the Visa Applicant - decision under review affirmed.
Migration Act 1958 sections 417, 501
Sebastian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 497
Fang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1195
Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Beale and Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
REASONS FOR DECISION
6 August 2004 Deputy President J. Block PART A – PRELIMINARY AND GENERAL
1. The decision under review is the refusal dated 30 September 2003 by a delegate of the Respondent of an application for a spouse visa by Hua Ling Weng (“the Visa Applicant”); that application was sponsored by Reng Sheng Qiu who is the Visa Applicant’s husband and who is the Applicant in this matter.
2. The Applicant was represented by Mr Eric White of Counsel instructed by Firmstone Lawyers; Ms Sharon Hanstein of Blake Dawson Waldron, solicitors, appeared for the Respondent.
3. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act together with exhibits as follows:-
Exhibit R1 is an affidavit dated 19 May 2004 by Christine Grimm an officer in the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”)
Exhibit R2 relates to country information referable to the Peoples Republic of China in general and Fujian Province in particular.
4. The matter was originally listed for hearing on 20 May 2004 and 21 May 2004. In fact two days proved to be insufficient as a result of which the matter was heard on two additional days, and being 8 and 9 July 2004.
5. The Respondent’s Statement of Facts and Contentions dated 30 March 2004 contained the usual helpful chronology of relevant events, together with the Respondent’s contentions as to the alleged serious nature of the Visa Applicant’s conduct. I include clause 1 (under the head of ‘Facts’) and clauses 11 to 19 of that Statement of Facts and Contentions, as follows:-
“FACTS
Date
Event
Reference
25 September 1978
Visa Applicant born
Tp112
3 December 1981
Review Applicant born
Tp128
18 March 1997
Review Applicant is granted a subclass 101 (Child) visa
Tp162
7 April 1997
Review Applicant arrives in Australia
Tp162
12 January 1999
Visa Applicant arrives in Australia on a false passport
Tp160, 162
16 January 1999
Visa Applicant becomes an unlawful non-citizen
Tp6, 160
6 April 1999
Visa Applicant applies for a Protection visa and is granted a Bridging Visa C
Tp34, 160
17 June 1999
Visa Applicant's Protection visa application is refused by the Minister's delegate
Tpp 6, 71ff
1 January 2000
Visa Applicant and Review Applicant meet
Tp117
7 March 2000
Refugee Review Tribunal ("RRT") affirms delegate's decision to refuse a protection visa
Tpp 6, 79ff
11 April 2000
Visa Applicant becomes an unlawful non-citizen
Tp6, 160
18 May 2000
Review Applicant granted Australian citizenship
Tp162
17 July 2000
Review Applicant and Visa Applicant commence cohabitation
Tp169
21 July 2000
Visa Applicant and Review Applicant marry
Tp157
24 July 2000
Visa Applicant seeks ministerial intervention pursuant to section 417 of the Act
Tpp 6, 92ff
6 September 2000
Minister decides not to consider exercise of power under section 417 of the Act
Tpp 97
2000
Visa Applicant works in Australia whilst an unlawful non-citizen
Tp106
19 September 2000
Visa Applicant is taken into immigration detention
Tp98, Tp6
22 September 2000
Visa Applicant is granted a Bridging Visa E
Tp6, 160
4 October 2000
Visa Applicant and Review Applicant depart Australia
Tp161, 163
5 October 2000
Visa Applicant applies for Spouse (Provisional) visa
Tp110
21 October 2000
Review Applicant returns to Australia
Tp163
19 July 2001
Visa and Review Applicant's son born
Tp222
21 March 2002
Review Applicant departs Australia
20 June 2002
Review Applicant returns to Australia
9 January 2003
Review Applicant departs Australia
8 May 2003
Review Applicant returns to Australia
23 May 2003
Delegate issues Notice of Intention to Refuse application
Tp231
30 September 2003
Visa Applicant refused Spouse visa
Tp252
CONTENTIONS
11.The Respondent contends that the following conduct of the Visa Applicant is of a very serious nature:
(a)seeking and utilising the services of a people smuggler to assist her in entering Australia;
(b)obtaining a visitor's visa using a false passport (being a passport belonging to another person (Feng Jun JIN) on which the Visa Applicant's photograph was substituted) and with the provision of false information;
(c) entering Australia on the false passport;
(d)providing false and misleading information to the Department in connection with a protection visa application;
(e)reiterating, and elaborating on, that false and misleading information in connection with the review application to the RRT;
(f)reiterating that false and misleading information in connection with an application to the Minister for intervention pursuant to section 417 of the Act;
(g)remaining in Australia whilst an unlawful non-citizen on two occasions for periods totalling approximately seven and a half months; and
(h) working in Australia whilst an unlawful non-citizen.
12.The Respondent contends that the Visa Applicant's actions as outlined above suggest that she was willing to take whatever action was necessary to gain entry to Australia and to remain there as long as possible. It is likely that, had she not been located by officers of the Department, she would have continued to remain in Australia, and to work, as an unlawful non-citizen. Her actions demonstrate a significant and continuing disregard for the law, including a willingness to engage the services of persons engaging in criminal conduct to achieve her purpose. Her actions should be viewed as very serious and as establishing that there is a real probability that she would again engage in unlawful behaviour if she perceived it to be in her interests to do so.
13.The refusal of the visa in this case would serve as a general deterrent to other persons in China considering engaging the services of people smugglers to enable them to enter Australia. Given Australian and international efforts to reduce people smuggling, any deterrence that would be created through the refusal of visas in cases such as this should be given weight by the Tribunal. Further, the Visa Applicant admitted in interview (Tp187) that it is common in the area where she comes from for people to buy false passports, so the refusal in this case might have a particularly strong impact.
14.The refusal of a visa to a person who has provided false claims in support of a protection visa application, and maintained those claims on review and in seeking ministerial intervention pursuant to section 417 of the Act, is also likely to deter others from doing likewise.
Expectations of the Australian community
15.The Australian community expects that persons who have engaged in such significant and continuous immigration malpractice as the Visa Applicant would not be granted a visa to enter and remain in Australia. This is particularly so, given her claim to a spouse visa is based on a relationship that exists only because of her extended stay in Australia as a result of immigration malpractice.
Best Interests of the children
16.The Direction indicates that when considering the best interests of a child, the Tribunal should have regard inter alia to the age of the child, the time (if any) that the child has spent in Australia and any language or cultural barriers for the child in the probable country of future residence (par 2.16). As the Review and Visa Applicant's child is a three year old who has lived his whole life in China, has never been to Australia and whose language and cultural ties are with China, the Respondent submits that the best interests of the child do not weigh to any significant extent in favour of the grant of a visa to the Visa Applicant.
17.The Applicants have provided copies of the People’s Republic of China Nationality Law and Law on Entry and Exit of Aliens to support a claim that the child is unable to remain in China. The Respondent contends that this material does not establish this claim and the position is in fact that it is standard practice for the Chinese authorities to grant visas to non-citizen children born in China to a Chinese national parent to enable those children to reside in China (Tp10).
Other Considerations
18.The Applicants, in the Statement of Facts and Contentions, appear to claim that it is not practical for the Review Applicant to reside in China because he has been an Australian citizen since May 2000, he has no relatives apart from his son in China and he "will experience great difficulty in obtaining employment in Fuqiung, Fuhian". No particulars or evidence is provided in relation to the employment claim to take it beyond a bare assertion.
19.The Respondent notes that the Review Applicant was born in Fuqing, Fuhian and resided in China for a significant part of his life, coming to Australia in 1997. He has also returned to China on a number of occasions since the Visa Applicant departed Australia. There are no language or cultural barriers to the Review Applicant residing in China and there is no evidence that he would not be able to obtain a visa to reside there with his wife and child. Whilst the Review Applicant might prefer to remain in Australia, there is, at least on the current state of the evidence, no real impediment to the Review Applicant living in China.”
6. In the interests of balance I include the whole of the Applicant’s Statement of Facts and Contentions (not dated) and sent under cover of a facsimile by Firmstone Lawyers dated 1 March 2004 as follows:-
“FACTS
1.The Visa Applicant was born on 25 September 1972 and is a citizen of the people’s Republic of China.
2.The Visa Applicant entered Australia on 12 January 1999 using a false passport, became an unlawful non-citizen on 16 January 1999 and subsequently lodged a protection visa application on 6 April 1999 in her name.
3.That visa application was refused on 17 June 1999. A review of that decision by the RRT was refused on 7 March 2000.
4.The Visa Applicant married Ren Sheng Qiu, an Australian citizen on 21 July 2000.
5.On 9 August 2000 the Applicant sought Ministerial intervention which was refused on 12 September 2000. The Visa Applicant was detained on 19 September 2000 and departed Australia on 4 October 2000.
6. The Visa Applicant lodged a Spouse Visa application on 5 October 2000.
7.On 3 December 2001 a child of the Visa Applicant and her nominator/husband was born in China, Yang Qui. The child is an Australian citizen by descent.
8.On 23 May 2003 the Visa Applicant was advised that the Minister intended to examine whether there were grounds to refuse the Spouse visa under s501 of the Act.
9.On 30 September 2003 a delegate of the Minister decided to refuse the Spouse visa on character grounds.
10. The Visa Applicant sought a review of that decision to this Tribunal.
11.The Visa Applicant does not dispute that she is not a person of good character and relies upon the Tribunal to exercise its discretion favourably.
CONTENTIONS
12.The Delegate found in her decision that refusal of the visa would not result in permanent separation of the couple. In finding that refusal would not result in permanent separation, the Delegate relied upon the fact that the husband could reside in China if he wished to do so, and that he would encounter little difficulty in adjusting to life in China.
13.The Review Applicant and Visa Applicant contends that there is no basis for such a finding.
14.The husband has been an Australian citizen since May 2000. His entire family resides in Australia, and, apart from his child, he has no other relatives living in China.
15.The husband is engaged in full time employment in Australia and will experience great difficulty in obtaining employment in Fuqing, Fuhian.
16.If it is not practical for the husband to live in China, the Applicant will be permanently separated from her husband and as acknowledged by the Delegate, it is not practical for the child to reside in Australia if his mother has no right to enter Australia.
17.The result is that the child will remain separated from his father, and that the interest of the child should outweigh the ‘bad character’ finding against the Applicant.
18.It is also contended that on the evidence before the Delegate, that the child of the Applicant is considered to be a foreign citizen, and does not have any legal right to remain in China.”
7. Oral evidence was given by each of the Visa Applicant, the Applicant, the Visa Applicant’s parents and also Mr Najjarine, who is a principal in the company which employed or employs the Applicant. In the case of all of the witnesses, except Mr Najjarine, the services of an interpreter in the Mandarin language were used, although in respect of the Applicant some familiarity with the English language was demonstrated by the fact that he did on occasions answer questions in English without waiting for the question to be interpreted for him. The Visa Applicant gave evidence by telephone link to China.
8. During the course of her evidence, the Visa Applicant was asked what she would do if the decision were affirmed; her answer was that she would appeal. The Visa Applicant’s mother in her evidence, when asked a question of similar import, said that it was inconceivable that the Visa Applicant should not be allowed to come back to Australia. It is desirable in my view that the evidence be dealt with in these reasons, in some detail.
9. It may be noted by way of preface, that no witness statements were produced in respect of any of the Applicant’s witnesses. Ms Hanstein agreed to dispense with this (standard) requirement. I should note also that the Visa Applicant’s father gave evidence, following a suggestion by me that it seemed likely that that evidence would be relevant, having regard to evidence by the Visa Applicant and her mother as to how the cost of the false passport was financed. Mr White conceded at the outset of the hearing, and correctly in my view, that the Visa Applicant could not pass the character test.
PART B – THE VISA APPLICANT
10. The Visa Applicant said at the outset of her evidence that she lives in a village in Longtin County in Fujian Province. That village was described as being some two hours distant from Beijing. As to whether her place of residence is a village as that term is understood in Australia may be doubted; it is more likely, having regard to the size of the population, that it is a town.
11. The Visa Applicant was born on 25 September 1978. She attended primary school, junior high school and a vocational high school in Fujian Province for a period in aggregate, of about 12 years, subsequently amended to refer to a period in aggregate of 11 years. At her vocational high school, she obtained training in accounting..
12. The Visa Applicant said that after her vocational high school education ended, she did not go on to university. She said that she was awaiting employment but did not get a job. She said that she did not try to do so, and when asked whether employment would not have been possible in the accounting arena, she said that her school “was not famous at all” and so that her qualification was low. In the result the Visa Applicant did not ever obtain paid employment in China; she lived in her parents’ home with them and her younger brother and sister until she came to Australia in 1999. She indicated at first that she left school in 1994 but that date was subsequently amended to refer to 1996.
13. The Visa Applicant said that although she was happy living with her parents, she came to Australia in order to obtain a job. She agreed that she sought and obtained a false passport for this purpose. She said that she was introduced to a friend and gave him a photograph; she said also that she did not know at first that the passport was false. It was then put to her that she must have known that it was false, because although it carried her photograph, it carried a false name. Her answer was that she had no choice.
14. The Visa Applicant said that she had previously had a Chinese passport but that it had expired. When asked why she did not renew it, she said that the rules were very strict. Her evidence was that she had visited Indonesia on the occasion of the 50th wedding anniversary of an uncle and his wife, but could not get a passport for Australia, because, so she said, she had received no invitation from anyone in Australia, and an invitation or sponsorship was necessary for this purpose.
15. She then obtained the false passport which contained a three day transit visa for Australia; she paid 100,000 RMB for the false passport. (I should here note that it was generally accepted throughout the hearings that the relevant exchange rate is approximately that of 5 RMB = A$1 and I propose to use that rate even though there were presumably fluctuations from time to time).
16. The Visa Applicant said that she borrowed the amount of 100,000 RMB from friends and relatives. When asked whether she had repaid it she said that she had paid back a little but “not enough for the interest”.
17. After coming to Australia, the Visa Applicant worked in a textile factory in Marrickville. She had some English because it was a basic subject at her school; she found the job through a Chinese newspaper. She first and on arrival in Australia went to live in Berala near Lidcombe; she had brought US$200 with her. She said that she had made no arrangements with anyone in Australia before leaving China, but located a friend after her arrival in Australia; she had previously and before leaving China obtained an address from a neighbour in China of a relative in Australia. On arrival at the airport, she took a taxi to that person’s address. (Evidence much later in the hearing revealed that the Visa Applicant’s mother has a younger sister who has been resident in Australia for a number of years; the fact that this is so came up only at the end of the hearing when there was evidence that the Visa Applicant’s mother together with that sister are currently working at Flemington Markets as packagers of fruit and vegetables, in a business which may belong to the sister in question).
18. The Visa Applicant then said that she started working some while after her arrival in Australia, and having found work in Marrickville moved to live in Marrickville. She met her husband, the Applicant, at a New Year’s party in Australia in 2000. The Applicant also comes from Fujian Province. She said that she did not tell him of her illegal status and that he became aware of it only when she was detained by the immigration authorities.
19. The Applicant has visited the Visa Applicant in China on four occasions. When she left Australia he went with her and stayed for 20 days. On a second occasion he came for one or two months; the visit on the third occasion was longer than three months and the fourth visit was for only one week. She said that her husband works for “someone else”. He originally did some form of renovation work but, according to her evidence, now works for his father, affixing marble bench tops.
20. The Visa Applicant’s son (referred to in these reasons as “the child”) was born on 19 July 2001. The Applicant was not present at the time. The child, who was born in China, and for that matter conceived in China after the Visa Applicant had returned to China, was brought to Australia by the Applicant on 5 May 2004. This was done, so she said, because he needed a permit to stay in China, and, according to her evidence, if the child stayed in China a fine would have become payable.
21. The Visa Applicant was then asked whether her husband sent her money for her support. At first she could not recall how much was sent and at what intervals, but then gave evidence as to various amounts supplied by him. When asked whether the funds supplied were sufficient, she said that her parents also furnished financial assistance. Her parents (together with her younger brother and sister) moved to Australia on 8 January 2004. It would appear that the Applicant’s father has obtained a business migration visa and pursuant to which he is obliged within a specified period to establish a business in Australia in which he himself is actively involved.
22. When asked why they, her parents, could obtain permission to go to Australia, when she could not, the Visa Applicant said that they had established a good business in China and were therefore qualified.
23. The Visa Applicant said that she currently lives with her paternal grandmother. The child is being cared for by the Applicant, who because he is obliged to provide care on a full-time basis has had to give up his job. She said that the Applicant’s own parents have two young children and could not look after another. She then said that the Applicant’s father has three children, other than the Applicant, and that one is even younger than the child. She said (in May 2004) that her father-in-law had been in China only a few days previously but did not know whether it was a trip made for business purposes.
24. The Visa Applicant agreed that her son could become a citizen of China if he gave up his Australian citizenship. She was asked about the standard of health care in China and answered that it was “very bad – there are so many contagious diseases”. When asked about the fine which would have been imposed if her son had stayed in China, she said that the amount of the fine would be 500 RMB per day.
25. The Visa Applicant agreed that there are child-care facilitates in China but said that because her son is not a Chinese citizen the cost would be higher.
26. The Visa Applicant was then asked about her parents’ business; it consists of a chicken business and an eel business. She was asked in particular what had been done about the businesses (often referred to in the course of the hearings as farms); she said, on 8 April 2004 that in respect of the farms there is currently a manager and that her father would come back to China to do something about it; (subsequent evidence indicated that her father was in China at the time).
27. The Visa Applicant was then asked why with her training in accountancy, she did not work in the family business. She replied that she didn’t have experience and then said “I do not know what to say”. She was then asked why if the child is in Australia she could not obtain employment in the business, she answered that the business did not need an accountant.
28. The preceding provisions of this part B relate to the examination-in-chief of the Visa Applicant; the remainder of this part B relates to a part of her cross-examination.
29. The Visa Applicant said that since leaving China in January 2004 her mother has not returned to China. Her father has been back to China; at first she said that her father had been back on a number of occasions but this was amended so as to indicate that it is her husband, the Applicant, who had been back to China on four occasions, while her father has been back to check on the business. (Subsequent evidence by her father indicates that about a month after arriving in Australia, he returned to China and has been in China looking after the business until very recently). When asked how many people the business employed she said that she did not know. It was put to her that she must have gone to the business premises; she replied that it employed more than a few and about 50, and when busy more than that.
30. The Visa Applicant was then asked whether she had asked her father whether she could work in the business. She said “No. I am not in the mood – I miss my son”.
31. The Visa Applicant was then asked, what she would do if the decision were affirmed. At first she said “What do you mean?”, then she said, “Of course we both expect he stays in Australia because education and Medicare and conditions are better in Australia”. She was then again asked what she would do if the decision were affirmed, her answer was that she would appeal. When asked what she would do if she did not succeed on appeal, she said “I don’t think I will lose the appeal”.
PART C – THE VISA APPLICANT’S EVIDENCE CONTINUED
32. Mr White applied to re-open his examination-in-chief of the Visa Applicant; with the consent of Ms Hanstein, his application was granted.
33. The Visa Applicant said that health conditions in China were bad because the hospital had old equipment and moreover health care is expensive. She said that to get to the hospital took about 20 minutes. She said also that the child does not have household registration because he is an Australian citizen. When it was put to her that he could become a Chinese citizen, having been born in China, she said that her husband would not agree. She said that her son was born in the hospital in China by caesarean section.
34. The Visa Applicant was then asked whether specialist medical attention was available. She answered that there would be difficulty because her husband the Applicant, is an Australian citizen, and because he was not old enough. This was explained on the basis that he, the Applicant, was under 22 when he married the Visa Applicant.
35. The Visa Applicant said that the child had not needed medical attention since leaving the hospital but that medical attention was expensive. She said also that education would be more expensive because the child is an Australian citizen. She said furthermore that the school is old and that there are 70 to 80 children in each class.
36. The Visa Applicant then went on to say that there are four people in the house where she is currently living. She lives in the house with her grandmother and there is in addition, another daughter of her grandmother, and also her grandmother’s sister-in-law. (Subsequent evidence indicated that there are three persons living in the house and being the Visa Applicant, her grandmother and her grandmother’s ‘sister’ and the term ‘sister’ in this context is a courtesy title because she is not in fact a relation). When asked who supported the other women she said that they are supported by the sons of the sister-in-law, while her grandmother and she herself are supported by her parents and some relatives (and being specifically her father’s brothers). She agreed that her husband, the Applicant, also sends money when he can.
37. I do not think that I need to go into the detailed evidence which then followed as to the nature of her grandmother’s home. While adequate in terms of accommodation it does not have running water (and in consequence of which water must be fetched from a well). It also does not have an indoor toilet. It does have electricity, television and telephone. Put in other words, her grandmother’s home is adequate in some but not all respects. However, later evidence indicated in clear terms that she lives there as a matter of choice. Her parents who are affluent, have a perfectly adequate modern home, and containing all modern conveniences and which is available to be used by her. (Her mother gave evidence that that house Is let out, but her father said that it is empty and that she could live in it).
PART D – THE EVIDENCE OF HE GUORONG (THE VISA APPLICANT’S MOTHER)
38. With the consent of Ms Hanstein the evidence of He Guorong (referred to in these reasons as the “Visa Applicant’s mother” or “the mother”) was interposed in the afternoon of the first hearing day. When the application for her evidence to be interposed was made, it was conceded that all of the Visa Applicant’s protection visa applications were false.
39. The Visa Applicant’s mother lives at Berala with her husband and two children, and being the two younger siblings of the Visa Applicant. She came to Australia in January 2004 in connection with the business migration visa (referred to by her as a subclass 127 visa granted to her husband or perhaps to her and her husband).
40. The mother in answer to questions about her occupation said that she had her own factory with her husband – “operating a farming business, mainly chicken and eels”. She said in relation to the business that her elder brother is managing it but that her husband is there as well; she said that he lives sometimes in Australia and sometimes in China. When asked whether they intended to keep the business in China she said that if they had no choice they would keep it. She said also that they would need money in order to invest in Australia. When asked whether that money would be obtained from the sale of the business in China she said, “it will take some time, it cannot be sold all of a sudden”.
41. Ms He said that the Chinese business is successful. The eels are exported to Japan. The eels turnover is in the region of 3,000,000 RMB per annum and the profit is 1,000,000 RMB per annum. There is additional profit from the chicken business. 40 people are employed in the chicken business while 60 to 70 people are employed in the eel business when the eels are harvested. The poultry section has been less profitable of late because of flu. In a normal year the profit would be between 500,000 and 600,000 RMB.
42. Ms He was then asked about the possibility of her daughter, the Visa Applicant, working in the business. She said that this was not envisaged. She said that after leaving school, her daughter had never worked on a permanent basis. However, her daughter did perform some bookkeeping tasks on a monthly basis at the end of each month. She said that apart from her daughter’s occasional assistance, she was the bookkeeper. She said also that the business was obliged to report its income, but did not pay tax because it was an agricultural business. Ms He then said that although her daughter worked a maximum of one day in each month in the business, she did not receive any remuneration. Ms He also said that her daughter told her that she bought a false passport because she couldn’t find work. Ms He said furthermore that she and her husband did not help the Visa Applicant with the cost of the false passport.
43. Examined further about why her daughter did not work in the business she said, “my business is mine – daughter is daughter”. And again “I didn’t know whether she could find a job or couldn’t find a job. She was living in the house”. And in relation to her work in the business she said, “it wasn’t a job”. When asked why a job could not be found for her in the business, she said that her daughter could not do it.
44. Ms He agreed that there were female employees in the business although the manual work was done in the main by men. She said also that at times they lived in the factory. She said furthermore, in relation to their house, “we didn’t have a bathroom in our village and we didn’t have running water”, electricity had “just been started” and they had TV. She went on to say that their house in Berala is much better because they have running water and the air is cleaner. Ms He said to say that they have leased out the home in China and that the Visa Applicant is currently living with her paternal grandmother. (Much of this evidence was different from that of her husband in relation to the same matters). In particular, his evidence indicated that Ms He and her family lived in a house with all modern conveniences which is currently vacant, but according to her husband, available for use by her daughter.
45. When asked about the child’s health, she said that it was “bad” and “children get sick from flu. If flu comes he would get it”.
46. In cross-examination by Ms Hanstein, Ms He said that she and her husband came to Australia and that after a month in Australia her husband went back to China. She said that, “he will stay for a month and then he will come back”. She herself is working at a fruit shop in Flemington; she said that her daughter is at school and that her son Is back in China. When asked what her son is doing in China, she said, “he will come back – he has a girlfriend there – he is 24”. Her evidence was that her son did not ever work in the family business. She said also that he is learning drawing and interior design, but that he has not graduated. (This evidence too in relation to the son was markedly different from that of her husband).
47. Ms He said that apart from the business she and her husband have a car and that they brought US$20,000 to Australia. They have not yet transferred any money from China.
48. When asked whether if her daughter, the Visa Applicant, had wanted to work in the business in China she would have permitted it, she answered, “there was nothing for her – she was looking after the baby for many years”. And when asked whether there was not perhaps a management or administration role for her daughter in the business, she answered, “not everyone can do this, as children are children – we can’t make decisions for her”.
49. It is unnecessary for me to deal with the further cross-examination of this witness as to the possibility of the Visa Applicant working in the business. Ms He was adamant about the fact that there was nothing for her daughter in the business even though the business does require administrative and accounting staff.
50. It was then put to Ms He that an interview at the Australian embassy on 21 January 2003, the Visa Applicant said that she paid 100,000 RMB for the false passport and obtained more than 50 per cent of the cost from her parents. The interview record (T187 to T189) reads as follows:-
“Minister for Immigration and Multicultural and Indigenous Affairs ats Hua Ling WENG (aka Ren Shen QUI)
Administrative Appeals Tribunal Proceedings N2003/1788
Section 37 Documents, Pages 187 to 189
[These ........... (illegible) from interview (s501)]
[Interview held 21/1/03 (signature) 23/5/03]
[410436]
Interview notes for 2000/137286
Notes related to the false passport:
Q: How did you get your passport?
A: I bought it.
Q: Who from?
A: It was a long time ago, in our place a lot of people are like this (buy false passports) and I bought the passport.
Q: How did you find the passport?
A: They got it and gave it to me
Everyone called him "Ah Hai"
Q: Who was the person who put you in contact with "Ah Hai"?
A: PA evades the question and does not answer
Q: How much did you pay?
A: 100,000 [RMB]
Q: How did you afford that?
A: I borrowed money
Q: Who from?
A: Mother and Father, and friends, and I also had some money
Q: Who much from mother and father?
A: more than 50%
Q: Which friends lent you money?
A: School Friends
Yu Ling (F) & Lin Ling (F) both born either 1977 or 1978
Q: Are they both still in China?
A: Yes
Q: How much did they lend you?
A: 20,000
Q: Have you repaid them?
A: Yes
Q: Why would they lend you so much money?
A: Because I was going abroad and needed money
Q: Was it one of them who introduced you to Ah Hai?
A: That person in not in China now
Q: Who is it?
A: One of my friends
Q: Name?
A: Wen Wu Bing (M)
Q: When was he born?
A: 2 or 3 years older than me
Q: Where is he now?
A: In Japan
Q: How did he get there?
A: Also through smugglers
Q: Are you still in contact with him?
A: No
Q: Did you meet Ah Hai in person?
A: No they said they had one passport and they said to provide 1 photo
Q:who showed you the passport?
A:Wu Bing, but I didn't look because they said it was a similar age and just to give them a photo
Q: Where is the passport now?
A: taken by immigration in Australia
Q: when?
A: when I was arrested
Q: did you have to pay more money after you got to Australia?
A: maybe they did ask for more from my parents but they didn't tell me
Q: why not
A: because I had a new job for a few months and the didn't want me to worry too much
[Implied work (signature) 23/5]
Q: do you know others who travelled to Australia illegally on false passports
A: maybe there are more in my factory
Q: Who?
A: Hai Yan
Q:When you went to Australia did the smuggler also make arrangements for your travel?
A:Yes, came to Guangzhou and waited for a long time, nearly 1 month then caught a bus to Shenzhen then to Hong Kong by boat
Q: did you go on a normal ferry ot(sic) Hong Hong?
A: I used the passport
Q: Did the people smuggler also buy your plane ticket?
A: Yes everything
Q: Did anyone else go with you on the flight to Australia?
A: No
Q: Where did you stay in Guangzhou?
A: hotel, can't remember the name
[(signature) 23/5/03]”
Ms He said that she and her husband did not know that their daughter bought the false passport. She said also that the debts due for the passport were the responsibility of herself and her husband.
51. The Visa Applicant’s evidence as to the fact that she borrowed 100,000 RMB for the passport and that she had paid some part only of the interest, was then put to Ms He, who had said, that the money borrowed had been repaid. She then said that she, Ms He, paid back “part of that money”. When asked to whom the money was repaid, she gave an answer which bore no relationship to the question.
52. Ms He agreed that her daughter went to Australia in January 1999 but said that she did not know that her daughter had gone to Australia, and that she knew for the first time that her daughter was in Australia when she phoned from Australia about a month after arrival in Australia. She repeated that she did not know her daughter was leaving China and that she received no money from her parents while in Australia, She said that her daughter when she phoned from Australia had indicated that she wanted to stay in Australia as long as she could.
53. When asked whether her daughter had requested her to repay the money borrowed for the false passport, she answered that her daughter had said that she had indicated to the lenders that she would repay when she, the Visa Applicant found a job. Ms He said that she could not remember how much had been repaid.
54. After her return to China, the Visa Applicant lived sometimes with her parents and sometimes with her grandmother; she said in particular, that after the child was born the Visa Applicant and the baby stayed with her and her husband and family but that she, Ms He, was so busy that her daughter went to live with her grandmother. Ms He agreed that she and her husband can and do provide financial support for the Visa Applicant and would do so in China.
55. Since the child has arrived in Australia, Ms He has according to her evidence, seen him in the evenings. She said that she cannot look after him during the day because she is working. She went on say that “the baby cries a lot because he misses his mother and he is not familiar with his father”. Ms He was asked what would occur if her daughter were not allowed to come to Australia. Her answer was “how can she not come?”
56. Ms He was then asked whether she knew of her daughter’s protection visa applications. Her answer was that she did. When asked whether her daughter is a refugee, she said that, “I don’t know – someone told her – Chinese people do this”. She was then asked, why it was that being well-off in China, she and her husband decided to emigrate to Australia; her answer was “people say, living conditions in Australia are like heaven and we find it so”.
PART E – THE EVIDENCE OF MR MICHAEL NAJJARINE
57. I do not think it necessary for me to go into great detail in respect of the evidence of Mr Najjarine. Michael Brothers International Trading Pty Limited (referred to in these reasons as “the Company”) is a company in which Mr Najjarine and the Applicant’s father are equal co-shareholders. A division of the Company is called Michael Brothers Stone Factory and it engages in the making of bench tops for kitchens. The Company has extensive assets in the form of, inter alia, real property and fixtures and fittings although the real property appears to have been financed (indirectly) by Mr Najjarine, in the sense that a bank loan was obtained to acquire it on the security of other property owned by Mr Najjarine.
58. The association between Mr Najjarine and the Applicant’s family appears to be close. When the Applicant came to Australia (years after his father had done so) he was given employment in the stone division. He received on-the-job training and is now a fully trained stonemason who can do cutting, polishing and installation. As such, according to Mr Najjarine, he receives a salary of A$700 per week before tax.
59. The Company imports stone in considerable quantities from China. Stone is often purchased in accordance with samples. Each of Mr Najjarine and the Applicant’s father travel on a regular basis to China, although it would appear that the Applicant’s father, who is himself of Chinese origin, travels to China rather more often that Mr Najjarine does. They have important contacts in China; indeed Mr Najjarine is proud of the fact that he received a special invitation to visit the Fujian Province by its government. His evidence was that the Company purchases both machinery and stone from Fujian Province.
60. Mr Najjarine said that the Applicant is not working at the moment because he is caring for his son, but that he would be re-employed as soon as he was ready. Mr Najjarine made it clear that the Applicant is a valued and trusted employee.
61. However when it was put to him that the Applicant if he returned to China could perform a function for the Company and perhaps a buying function, Mr Najjarine said that the Applicant does not have sufficient experience. He also said that it was possible that the Company would at some point in the future set up a cutting factory in China, but that currently it cuts its stone in Australia.
62. Speaking of the place in which the Visa Applicant currently resides, he said that accommodation in town is as modern as it is in the west but more primitive in rural surroundings.
63. Mr Najjarine said that he was aware of the fact that the Applicant had to go to China to fetch the child because the child’s visa was about to expire. He said also that the Applicant has to look after the child because there are no women who can do so.
64. Mr Najjarine said that in his estimation a suitable two-bedroom apartment in the town in China would cost about US$60,000.
65. Mr Najjarine’s evidence was credible for the most part. It is open to doubt however in respect of his evidence regarding the child’s visa, about which he plainly had little or no knowledge. So for that matter is it open to doubt as to the Applicant being obliged to look after the child and having to give up his job completely in order to do so. Mr Najjarine was anxious to assist the Applicant and his family and was prepared to stretch the truth in order to do so.
PART F – EXAMINATION-IN-CHIEF AND CROSS-EXAMINATION OF THE VISA APPLICANT CONTINUED AND CONCLUDED
66. Mr White commenced by returning to the question of how the cost of the false passport was financed. She said that she borrowed from friends. She was then asked whether she had said at her interview that she obtained the money from her parents and her answer was that she had not done so. She was asked whether she recalled that this was what she had said at her interview and her answer was that she could not remember that she had said so.
67. The Visa Applicant said that when she visited Indonesia her parents bore the costs. When asked whether any of the money borrowed for the passport had been repaid, she said, “I don’t know – I haven’t paid”. She went on to say that she had paid off some of the interest. She said furthermore that she did not know whether her parents paid off any of the interest. The Visa Applicant said that she borrowed the passport money from Yu Ling, Ling Ching, and Xiao Qui Chun.
68. She was again asked about her plans if the decision were affirmed, she again said that she would appeal. When asked, what she would do if the appeal were unsuccessful, she said that she did not think that she could lose her appeal because “you can’t let me separate from my family”. She said also that her family could not live with her in China because conditions in Australia are better. When it was put to her, that this was not an answer to the question asked, she said, “they have migrated to Australia and they intend to stay”. She replied in the negative when asked if she had discussed the matter with her husband. She also replied in the negative when asked if he could live in the same house; her evidence was that living conditions in Australia are so much better than they are in China. When asked whether her husband could work while she looked after the baby, in China, her answer was a simple “No”. When asked, why not, her answer was that he is an Australian citizen and would not find employment in China, and moreover, even if he got a job it would not pay enough. When it was pointed out to her that she was receiving support from her parents, she answered that this was temporary because they “are grown-ups” and “in any event, they did not have the responsibility to support them”.
69. The remainder of this part F relates to the cross-examination of the Visa Applicant. She was asked at the first instance, whether she recalled her interview at the Embassy and she said that she did. She was then asked about how much she had borrowed from the three friends named by her. She said that Ms Ling lent her 20,000 RMB and the other two friends lent her 30,000 RMB each. It was pointed out that this left 20,000 RMB to be accounted for and she said that that she had some savings. When it was pointed out to her that she had never had any paid employment, she replied that this amount emanated from New Year presents from her relatives and parents. She also said, at a different time during her evidence that the money arose from her trip to Indonesia
70. It was then pointed out to the Visa Applicant that at her interview (Tpg187) she said that she obtained more than one-half of the cost from her parents. She answered, “people like me go overseas”. When pressed to explain, she said, “they don’t know I wanted to go to Australia. I borrowed money from them but not 50 per cent”.
71. When it was put to the Visa Applicant that she has told Mr White that she did not obtain money from her parents, when giving evidence previously, her answer was “because I didn’t tell them I wanted to go to Australia”. Further cross‑examination on this aspect elicited further demonstrably untruthful answers culminating in it being pointed out that she had said something entirely different at the interview. Her answer was, “in my recollection I did think I said so”. And again it was pointed out to her that she had said that she borrowed from her parents. Her answer, “I don’t remember I borrowed 50 per cent”.
72. The Visa Applicant was asked whether other people were buying false passports, her answer was that they were and that the availability of false passports is advertised freely. As to the procurement of her own false passport, she said that a friend introduced her to the supplier.
73. She was then asked, why she chose Australia and her answer was, that Australia is ideal because she could, so she was told, obtain a job and that she could obtain a refugee visa which would entitle her to stay in Australia. She went on to say, “in my definition I was a refugee – I don’t know”. And she went on to say that the newspaper gave information about refugees. She did not answer a question as to what in her view had occurred which would have the effect that she could consider herself a refugee.
74. In Australia the Visa Applicant found a job through a Chinese newspaper, she also found the names of migration agents in a Chinese newspaper. It may be noted that the Visa Applicant originally applied for a refugee visa on grounds (all false) which appear in her personal statement in support (Tpg63 to Tpg70). A part of that statement, and being the second and third paragraphs from Tpg64 reads as follows:-
“I had a relative in Taiwan. We contacted with each other frequently. One day in August 1997, two policemen searched our house out of a sudden. They told us the relative we had in Taiwan was a secret agent of the Taiwan Government. We were suspected of collaborating with him and plotting anti-Communist Part activities. We explained to the authorities repeatedly that he was just a relatives separated from us years ago and that all our correspondences were of family issues and had nothing to do with the state secrets and anti-Party activities. They turned a deaf ear to that and detained me for two weeks. They questioned and tortured meday and night. They forced me to confess the so-called crime of treason. They got nothing from the prosecution but to release me eventually. At my release, they warned me that if I contacted my relative in Taiwan again I would be sentenced to life prison under the crime of treason.
Suffering all these miseries, I was bitterly beaten to a low mode. I wanted to get a job; but no employers would employ me. At the age of 19, my life just began. Unfortunately my whole future in China was ruined by the Chinese Communist Party.”
75. Having been refused a protection visa, the Visa Applicant, through a different migration agent sought review by the Refugee Review Tribunal (“RRT”). She appeared personally before the RRT in support of her application and in order to make the same false claims. After the RRT affirmed the original decision she sought Ministerial intervention under section 417 of the Migration Act 1958 (“the Act”) and using the services of yet another migration agent. In all of these endeavours she was unsuccessful.
76. The Visa Applicant said that she was not informed that the false passport cost 100,000 RMB. She said also that she did not know it was false and then said, “I thought it was worth it to go and study”. When asked why she chose Australia, she said that she had heard reports about how good it was. When asked whether she knew that all she had obtained was a three-day transit visa, her answer was, “I don’t understand English”.
77. When it was put to the Visa Applicant that she went to Australia to stay, she answered that she only wanted to make enough money to pay back the money she had borrowed. (That answer was, of course, particularly untruthful because she had borrowed the money in question in order to get to Australia in the first place).
78. In the afternoon of the third day, the Visa Applicant gave evidence as to the circumstances in which she came to make the refugee application and to pursue it thereafter to the RRT and then after that to the stage of Ministerial intervention. Her answers were that she always signed the legal documents in blank, that she did not know what was put in the applications and that she supplied basic information only. She went on to say that she knew of their untruthfulness only when she went to the interview. That this evidence was untruthful is demonstrated by the manner in which she switched agents and also having regard to the fact that she actually appeared before the RRT in January 2000 to give evidence as to her false claims, and in support of her application for review.
79. In categoric terms the Visa Applicant agreed that her claims that she was tortured and imprisoned were lies. She said that she did not know that an application under section 417 of the Act was made. When it was put to her that she claimed that she was jailed for three months for unlawfully seeking to leave China, she asked “when?”. She finally admitted that she was told that she could stay in Australia only if she told lies of this nature. The various agents employed by her, all charged her fees. She was asked if she adhered to her statement that she wanted to stay in Australia only to earn money; her answer was, “at that time I had not earned much money;” and “later I met my husband”.
80. The Visa Applicant claimed that she never told her husband about her status and denied that she ever told him that she was going to see a migration agent. When asked whether she had not thought it proper to tell her future marriage partner of these important circumstances, she replied simply that he had never asked.
81. The Visa Applicant admitted that she worked illegally in Marrickville. She said simply, “but I must work – I have no food”.
82. It was put to the Visa Applicant that the conception of the baby was planned (and as noted previously conception took place in China) after she was required to leave Australia. Her answer was that it was a natural pregnancy.
83. It will be recollected that the Visa Applicant said that she had been obliged to resort to a false passport because she could not get an invitation to go to Australia. At that time, the fact that the Visa Applicant’s mother has a sister resident in Australia was not known and the fact that she might have been able to obtain an invitation from her aunt was accordingly, not put to her.
84. I do not think it necessary to go into the lengthy evidence as to the Visa Applicant’s dealings with the authorities as to a visa for the child. She gave evidence as to the fact that she knew that a visa was required and that a fine could be imposed if it was not obtained. Her knowledge was obtained a long time before the child was taken to Australia in May 2004, and when the Applicant came to China to fetch him. There is a simple reason why this evidence (the truth of which is doubtful) is for the most part irrelevant. Ms Christine Grimm was not required for cross‑examination and her affidavit evidence should thus be accepted. Clause 7 of Exhibit R1 reads as follows:-
“7. I am aware that:
(a)during the period that I was based at the Guangzhou Post, between approximately 15 and 20 persons resident in the PRC attended the post to inquire about the possibility of an Australian Declaratory Visa being issued to their Australian citizen child. Australian Declaratory Visas do not in themselves provide an authority under the Migration Act 1958 to enter Australia, nor do they provide evidence of Australian citizenship. They are designed as a form of documentation to facilitate the entry to Australia of certain Australian citizens travelling on non-Australian passports.
(b)the reason given by those persons for making the request was that those children would not be permitted to remain in the PRC unless they obtained and used a PRC passport rather than an Australian passport. The visa was sought to establish that the children were Australian citizens even though they would be using a PRC passport;
(c)although it was not strictly part of the duties of the Guangzhou Post, members of staff from the Post, I cannot recall precisely who, made enquiries of the PRC authorities in an attempt to ascertain whether such children could remain in the PRC if they did not have PRC passports;
(d)the PRC authorities orally informed those members of staff that the PRC authorities could and did grant, to Australian citizen children born in the PRC to a PRC-national parent, visas to enable those children to remain in the PRC with their PRC-national parent;
(e)where the Australian citizen parent was also resident in the PRC, the child would be granted the same type of visa held by the Australian citizen parent. Where the Australian-citizen parent did not reside in the PRC, the process could be more complex because the PRC authorities had to determine the type of visa to issue to the child. However, although the process was more complex, the PRC authorities could and did grant visas to such children even when their Australian citizen parent did not have a visa to reside in PRC;
(f)no legislative or other documentary basis for this practice of the PRC authorities was located, despite searches for the basis being undertaken. In my experience, it is not unusual for no information in documentary form to be available in relation to matters concerning the PRC authorities;
(g)on the basis of this information from the PRC authorities, persons who made enquires of the Guangzhou post in relation to obtaining a certificate evidencing Australian citizenship or a declaratory certificate of Australian citizenship for their child, were informed by the Post that the issuing of such a certificate was not necessary in order for the child to continue to reside in PRC and that the PRC authorities should be contacted in order to obtain a visa to enable the child to continue to reside in PRC;
(h)some of the persons who had made enquires of the Guangzhou Post, as set out above, later informed the Post that they were successful in obtaining a PRC visa for their child to continue to reside in PRC;
(i)to the best of my knowledge, no such person later informed the Guangzhou Post that they were unsuccessful in obtaining a PRC visa for their child to continue to reside in PRC.”
85. I accept Ms Grimm’s evidence that a baby born in China who has a Chinese national parent will not be denied a visa to live in China; (evidence to the contrary cannot be correct or truthful. In any event, and even on the basis of the Visa Applicant’s own evidence, she did very little from the time of the birth until the departure of the child to Australia in May 2004. At the very best for her she received a notice of some sort in July 2003, some 10 months before the child was taken to Australia. That notice was addressed to Mr Weng Zumao; the Visa Applicant explained this reference on the basis that her father was the registered householder. A reference in the notice to a nephew was dismissed as a translation error.
86. Suffice it to say that all of the evidence on this aspect (and it took up some considerable time) cannot in the light of Exhibit R1 be accepted, but it would be both unnecessary and tedious for me to deal with it in detail.
87. On the fourth and last hearing day, Mr White said that the Applicant’s father would not be giving evidence because he was travelling in China and could not be contacted. However the Visa Applicant said that he had recently returned to Australia.
88. The Visa Applicant said that she knew that her father still had the business in China; she said also that she had asked her father if she could work in the business, and her father said it was too heavy for her. She agreed that her mother had worked in the business until January 2004 and when asked who was doing her mother’s job, she said that her uncle was performing her own mother’s administrative duties. She said furthermore, that her uncle was doing her father’s job as well and in any event, her father’s job was “just directing people” which he could do from Australia. (That evidence was not consistent with the evidence of her father).
89. The Visa Applicant was again cross-examined about the loans. She said that they were still outstanding, that she would repay when she could, but that she hadn’t got the money. She said furthermore, that the loans bear interest and when asked the rate, said 1.5 per cent.
PART G – THE EVIDENCE OF THE APPLICANT
90. The Applicant came to Australia from China in 1997. His mother (actually his stepmother) and three younger siblings came a month later. He said that he came to Australia with his father. However, it subsequently transpired that his father obtained a visa to reside in Australia in 1989 (before Tiananmen Square) and brought his family to Australia years later.
91. The Applicant left school when he was 16, having achieved so he said, the Australian equivalent of year 9. In Australia he had first worked as a plasterer but then, and in the employ of his father and Mr Najjarine received on-the-job training as a stonemason; he said furthermore that when he works he earns between A$1,500 and A$2,000 weekly. (Mr Najjarine has spoken of a much lower amount). The Applicant subsequently amended that evidence to make it clear that wages at this high level commenced only in July 2003 since prior to that date he had been an apprentice.
92. The Applicant said that he lived in rented premises at Berala for which he paid A$300 per week as rent. He said that his brothers are aged 16 and 7 respectively and he has a sister of about 3.
93. The Applicant first met his wife, the Visa Applicant, at a New Year’s day party in 2000 and when he was 19. They started living together and married in July 2000. He said that he did not know of her immigration status until she was detained and did not know of her refugee applications. He spoke of four visits to China, firstly, in October 2000 when she left Australia, secondly, from February to May 2001, thirdly, 20 days towards the end of 2002 and lastly, a week in May 2004 when he went to China to fetch the child.
94. The Applicant spoke of the poor living conditions in which the Visa Applicant lives. He referred in particular, to the lack of running water and the shared outside toilet. He did not at any stage mention the fact that she was living there by choice since her own parents’ much more modern home is available; (see in this context the evidence of the Visa Applicant’s father set out in part H).
95. Nor did the Applicant having told the Tribunal that he was renting a unit at a cost of A$300 per week, tell the Tribunal that in fact, he is living with his parents-in-law; (see again the evidence contained in part H).
96. He said he went to China to bring his son to Australia, and because he is the child’s sole carer cannot work at all and was obliged to give up his job.
97. The Applicant said that after the child was born in July 2001, the Applicant moved in with her parents. He said that he did not know why she later moved back to her grandmother’s house. I need not go into the evidence of money sent by him to China; although it did not accord with her evidence on the same subject I am satisfied that he did in fact provide some financial support although the precise extent of that support is not clear.
98. The Applicant was asked if he was aware of the fact that if he gave up his Australian citizenship he would be able to live in China. His answer was that it would be difficult to find a job because there were no jobs available. When asked whether he could live in China he said simply that he could not. He agreed that he was born in China but then said that all of his family are in Australia. (In fact he does have family still living in China). Ms Hanstein put it to him that she was not asking whether he wanted to live in China but whether he could; he answered simply, “No”.
99. When asked why he, the Applicant, is looking after the child it became clear (although gradually) that considerable help is available. His mother-in-law, who performed so large an administrative and executive role in the eel and chicken business in China, is packing fruit and vegetables at Flemington Markets at a salary of A$300 per week. It was put to the Applicant that it would make economic sense for his mother-in-law (earning A$300 per week) to give up her job in order to enable him to resume his much higher paid position, his answer was “she earns her money and I earn my own money and we don’t mingle”.
100. It was put to the Applicant that he had given up work in order to look after the child, and was asked, how this could continue, given that even if the decision under review was set aside, it would be months before the Visa Applicant could return to Australia. He answered that his father-in-law is now in Australia and he could ask him for help but in any event could only work on a part-time basis. (His father-in-law has been back in Australia for a very short time only, having spent most of the period since taking up residence in Australia in China looking after his own business in China, and his own evidence indicated that he is likely to be devoting his time to that Chinese business).
101. The Applicant was asked whether when he visited China from February to May 2001 he tried to find work. He said that he tried to find work but did not succeed. The evidence then went on to establish that on three occasions he joined the group of unemployed labourers who stand in the market awaiting potential employers. Some of them, but not he, did in fact obtain work. The work involved was manual. He was asked if he would accept manual work and he said that the wages were too low. When asked about the possibility of work in the business of his parent-in-law, he said that he had never asked them. He also said that he made no attempt to use the contacts which his own father and Mr Najjarine have established in China.
102. The Applicant was then asked what he would do if the decision is affirmed. He made it abundantly clear that he would not return to China and that he would not send his son back to China. He put it as “everybody wants the better life – we want the better life – we want our child here”.
103. When asked what he would do about his wife in that event, he said, “I will go and see her once a year”. When asked whether they could be reunited in another country. His answer was that he did not know.
PART H – THE EVIDENCE OF ZU MAO WENG (THE VISA APPLICANT’S FATHER) – Interposed
104. The Visa Applicant’s father (who is referred to in these reasons as ‘Mr Weng’) was asked whether he knew that his daughter, the Visa Applicant came to Australia on a false passport. His answer was that he only knew after the event. When asked whether he knew that she obtained a false passport, he replied that he didn’t know; he said, “I have two firms – eels and chicken and when she came I didn’t know”. He went on to say that he knew of her coming to Australia only after she had been in Australia for one month. His evidence was that she did not say goodbye and he knew nothing about it. His evidence was that he was so busy with the farms that he spent much of his time there.
105. Further evidence by Mr Weng dealt with the farms and the manner in which they are being managed. He explained the dormitory system which houses the workers. Based on his evidence, one would imagine that he is the chief executive and that his wife is subordinate.
106. When asked whether the Visa Applicant worked at the farms, his evidence was contradictory. At first he said that she came irregularly with her mother to work with figures but then said that she didn’t come to help and this was because “the condition is very smelly – not for children”. He then went on to say, “because it is a very small private business – I was able to manage it by myself – there was no big accounting work”. Subsequent evidence indicates that the eel farm is substantial and profitable, while the chicken farm had a better second half year after a less profitable first half-year.
107. When asked about his intentions regarding the farms his answer was that he wanted to become familiar with Sydney. He said that he has bought a car and intends to buy a house. He said moreover that he needed to talk to his relatives and to find out whether he could find a suitable business in Australia. He said that if he found that he did have a future in Australia he might sell the farm. When it was put to him that his business visa was granted on the basis that he must establish a business in Australia, he said simply, that his visa gave him multiple entry rights into Australia, that he was not familiar with Australia and also there was the language barrier. His evidence was that he arrived in January 2004, returned to China approximately a month later and has been in China until his recent return to Australia. Mr Weng was then asked categorically whether his daughter worked for the business and he answered that she did not. He said, “she didn’t work for me – all I can say is that she occasionally came to do something but she didn’t work for me”.
108. Mr Weng agreed that his wife worked on the farm. He said that she now packages fruit together with a younger sister who had settled in Australia previously. (This was the first mention of a younger sister resident in Australia).
109. Mr Weng talked of his comfortable home in China and also of his mother’s less comfortable home. The latter is on a single level and his mother who is 80 prefers it for this reason, and also because she has lived in that home all her life. He said also that his own home is empty and that the Visa Applicant could live there.
110. Reverting to the false passport he said that his daughter told him about it when she returned to China. He said that she borrowed from her friends who came to ask for repayment and because his daughter could not repay, he gave her 20,000 RMB for this purpose. He said that “this is very little money to me” and “the money she owes is not a lot and rather she finishes the debt”.
111. When asked how much his daughter borrowed from friends he replied that she borrowed 20,000 RMB from two or three people and that he gave her the money to repay and that “no one now comes to ask for money”.
112. Mr Weng’s evidence was that his daughter, the Visa Applicant went to Australia without informing her parents and that they heard nothing at all from her until she phoned from Australia about a month later. When it was put to him that in these circumstances he and his wife would have been most anxious and would have made inquiries, his answer was “young girls run away from home all the time. My wife was too strict with her”.
113. Mr Weng is currently living in a house with his wife, his son and daughter and also the Applicant and the child. He said that his son is looking for a job and is learning English and is at home most of the time. (His wife had said that that son is in China because of a girlfriend and studying interior design).
114. Mr Weng was asked what his wife earns; he said that he didn’t ask her but “maybe A$500 per week”. It was put to Mr Weng that his son-in-law can earn much more than his wife does and that it made economic sense for the Applicant to work, with (the Visa Applicant’s mother caring for the child; his answer was “my son-in-law is another family – how can two families mix together; (in fact his son-in-law, the Applicant and the child live in the same house). When it was put to him that the Applicant had said that he gave up work, his answer was “this is his decision – he is not going to work regularly now”. This suggests that the Applicant has not stopped work entirely.
115. When again asked why his daughter bought a false passport (when he could easily fund the purchase of a valid passport) disappeared to Australia, and they heard nothing for a month, his answer was that “I was out of the house – my wife was in charge of the house”. And then he said, “it was five years ago – I can’t recall”. (If Mr Weng intended to say that his wife knew about his daughter’s disappearance but then did not tell him, that statement would not be credible).
116. It was put to Mr Weng that his wife had said that the money borrowed had been returned to the friends who lent it, having been provided by them (Mr Weng and his wife); he said that that he didn’t know who the friends are and that this happened two or three months after the Visa Applicant returned to China.
117. When asked whether he planned to sell the house in China Mr Weng said that he would be going to China often to look after the business and would need it to live in. If his daughter wished to live there, she could do so; when asked whether this applied also for his son-in-law, his answer was that he could stay temporarily. “I never thought about it. The house is mine – why should I give it to my son-in-law?”. He went on to say that he wouldn’t give it because he had his own sons; this evidence was then amended so as to refer to one son and indeed he has one son only).
118. Mr Weng said that if the Applicant went back to China he could work on the farm and in the business if he were willing, although the salary would be less than he is receiving from the Company.
119. Asked about the current management of the business in China he made it clear that his wife’s eldest brother is in temporary charge only of administration, and that he, Mr Weng is still in charge of the technical side and phones on a daily basis.
120. In re-examination Mr Weng said that if he sold the business he would then sell the house in China. In general terms Mr Weng’s evidence suggested that his attention is currently focused on his business in China and that he has no present plans for an Australian enterprise.
PART I – THE APPLICANT’S EVIDENCE – RESUMED AND CONCLUDED
121. Further cross-examination of the Applicant as to why his own mother could not look after the child, he elicited the answer that “they all have to go to work to earn money”. When asked whether his mother is working, he answered that she is packing fruit and vegetables. He then said that his mother is not working but that she is looking after two children, and also that she is only his stepmother.
122. The Applicant was asked how it was that he knew nothing of the Visa Applicant’s status and whether they ever spoke of it. He said that they did not speak of it. When it was put to him that it was a matter of importance he replied that when two people are in love, it is not necessary to ask that question. When Ms Hanstein put it to him that two people in love would want to know all about each other, his answer was “this is not important”.
123. Further evidence revealed that the Applicant made no attempt to obtain work in China. When asked about child care for the child who is now about three, he said that this might happen in the future after the child has made a few friends.
PART J – THE EVIDENCE GENERALLY
124. In general terms it is clear enough that to this family, residence in Australia was seen as the ultimate prize. The Tribunal was repeatedly told that conditions in Australia are so much better than they are in China. The Applicant in particular has Australian residence and citizenship and he is not prepared to return to China.
125. The evidence before me was in the case of each and every witness untruthful to a greater or lesser extent. The Visa Applicant’s evidence was untruthful in numerous important respects. Her evidence as to how she financed the cost of the passport came in a number of differing and irreconcilable versions. She sought to persuade the Tribunal that conditions in China are not suitable and in particular because her grandmother’s house does not have running water or an indoor toilet. She did not mention that her father’s comfortable and modern home is available.
126. Her evidence as to the fact that she was entirely passive in all of the protection visa applications was clearly untruthful. She used different agents and she appeared before the RRT to pursue her false claims. It may be, and is indeed likely, that she had help from one or more of the agents concerned but in the absence of evidence from them it would not be fair for me to make findings as to their knowledge of the untruthfulness of her claims. However claims as to false stories supplied by migration agents occur with such regularity that it would be wrong to discount her claims entirely. It will be remembered that that she had been told in China that when she got to Australia, she could stay in Australia after applying for a refugee visa. She placed herself in the hands of a people smuggler; it would be surprising if that people smuggler did not have an associate in Australia who would handle the protection visa side of matters.
127. The evidence as to how the passport was financed was, at least in the version given at the Embassy interview, that her parents assisted her to the extent of more than 50 per cent. Both parents gave evidence as to some financial assistance albeit after the event.
128. It is hardly conceivable that a young woman, a member of a family of considerable means, should one day simply disappear and that her parents would next hear from her a month later to the effect that she had arrived in Australia; nor is it credible that in the meantime they would not be anxious and make enquiries The truth must be that the move to Australia was planned. Her father’s evidence that “young girls run away” was simply not credible. It must be remembered that the family has connections in Australia. The Visa Applicant’s mother now packs fruit and vegetables at Flemington Markets with her sister who has been in Australia for years. And the family has now come to Australia on a business migration visa, whose conditions have so far not been fulfilled in any respect. The evidence as to loans by friends was clearly fictional; if there had been such loans there would surely have been some evidence (and not necessarily written evidence) to this effect. And the evidence as to repayment was so inconsistent that none of it can be believed. On the balance of probabilities it is likely that the Visa Applicant’s parents knew of the move from the outset, and moreover that they financed it.
129. Much of the evidence was plainly designed to further the case. This was so as regards conditions in China. Exhibit R2 indicates that Fujian Province is far more prosperous than the parties suggested, but even if this were not so, the Visa Applicant’s parents are on their own evidence people of considerable means. (That evidence varied; at times the importance of the business and its profitability was boosted but on other occasions its profitability and importance was played down).
130. The evidence as to whether the Visa Applicant worked for her parents was also inconsistent. The probabilities are that she did at least to some extent. It is hardly likely that she simply stayed at home after leaving school until the day on which she departed for Australia. She worked in Australia (illegally for much of the time) during her stay in Australia and so that it cannot be said that she is unwilling to work.
131. I have dealt with the accommodation issue, it is clear enough that perfectly good accommodation is there for the asking.
132. The Applicant’s evidence that he knew nothing of the Visa Applicant’s status is not credible in the light of his evasive answers on this subject.
133. The evidence as regards to the child and the alleged fine culminating in his being brought to Australia shortly before the hearings commenced and even though this alleged problem had been on foot for a considerable period, is not credible. In the first place, the fine referred to is well within the means of the family. But more importantly, Ms Grimm’s unchallenged evidence that a visa is available for a child such as this must be accepted. Apart from any other considerations, Australian law allows an Australian citizen who relinquishes his citizenship for good reason to regain it thereafter, and there are currently suggestions that the law may be amended so as to allow citizenship to be regained where good character is demonstrated; even under current law to regain Australian citizenship is not onerous. The Applicant’s evidence demonstrated with stark clarity that he has not the faintest intention of giving up his Australian citizenship because he wants “the good life in Australia” and his statement that if necessary he will visit the Visa Applicant annually speaks volumes.
134. The evidence as to why the Applicant is looking after the child is also unacceptable. Apart from any other considerations the evidence of the Visa Applicant’s father would suggest that he has not stopped work entirely. But even then there are a whole host of family members who could assist. His stepmother is already caring for a child of much the same age and could surely manage another. He has a brother-in-law who is on at least one version of the evidence at home most of the time. The child is after all three and when many children are in childcare. The Applicant married the Visa Applicant at a time when he was very young. The child was conceived after her return to China. It is possible that the Visa Applicant thought that a child was necessary if this application were to succeed. (In a number of recent cases before me, a child was conceived and born at a very late stage and at a time when it might be thought imprudent for this to occur; see for example, Sebastian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 497).
135. Even the evidence as to prospects for the Applicant in China was unacceptable. Mr Najjarine spoke warmly of the Applicant’s ability but said that he did not have the experience to buy stone, even though stone can apparently be purchased by sample. The Visa Applicant’s father said that he could work in the firm but at a lower salary. The clear truth which emerged in the starkest possible terms is that none of these possibilities are being considered because life in Australia is so infinitely preferable. And this is so, even where life in China would be, in relative terms, comfortable and because of the means available.
136. The Visa Applicant showed no remorse whatever for her conduct in Australia. On the contrary, she was if anything defiant in her evidence that she would appeal an adverse decision. The evidence before me suggested that the Visa Applicant regarded the “good life in Australia” as something to which she had an entitlement. The Applicant’s evidence was that everyone wants the “good life” in Australia.
137. Even on relatively minor matters the evidence was inconsistent, and by way of one example only in respect of the earnings of each of the Applicant and the Visa Applicant’s mother. It was inconsistent as to the child’s health. It was inconsistent as to whether or not the house in China is or is not available.
138. Mr White in his closing submissions said that although the Visa Applicant behaved illegally (and consistently so) in Australia she harmed only herself. That contention when considered with any care cannot be accepted. There is a cost (and a not inconsiderable cost) in money and resources in all of the various proceedings which has resulted from her purchase of a false passport. This applies, inter alia, in relation to the Department, the RRT, the Respondent, the Australian Embassy and this Tribunal.
139. It is clear enough that the Visa Applicant committed breaches of both sections 234 and 235 of the Act. The penalties prescribed for breaches of section 234 of the Act are such that her conduct must be regarded as very serious and her evidence before me was so untruthful (and also in breach of section 234 of the Act) that it served to exacerbate the situation. The evidence of the other witnesses was also as I have said untruthful to a greater or lesser extent. I would have been prepared to hold that the evidence of Mr Najjarine was reliable enough until he sought to persuade me that for all his company’s influence and contacts in China, there could be no position for the Applicant.
140. As I have noted failure of the character test was conceded. So for that matter was it conceded that the Visa Applicant’s claims as to being a refugee were untruthful. In these circumstances it is then necessary to consider part 2 of Direction No. 21 Direction – Visa Refusal and Cancellation under Section 501 – No 21, (“the Direction”).
PART K – THE DIRECTION
141. The primary considerations in accordance with clause 2.3 of the Direction are:-
“2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
142. Clause 2.3 must be considered in conjunction with clause 2.5 which reads as follows:-
“2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
143. All of the Visa Applicant’s criminal conduct was calculated to procure residence for herself in Australia. If a visa were granted there would, so it was argued, be no need for her to re-offend. That said, her behaviour has been so consistently unlawful over so long a period, culminating in her untruthful evidence before this Tribunal, that recidivism cannot be discounted.
144. I turn next to deal with the question of deterrence. This is not the first case of institutionalised people smuggling to come before me. The facts in this case are in some respects similar to those in Fang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1195 (decided on 20 November 2002) which also involved a false passport, false refugee claims, and where the visa applicant in that case also gave evidence before the RRT. And institutionalised people smuggling is by no means confined to China. For example, Georgia is involved; see in this context, Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438 (decided on 15 May 2003). Where people smuggling involving false passports is involved, the authorities at the airport will inevitably be deceived. But since people smuggling inevitably involves or requires false protection visa applications, consideration might perhaps be given to the tightening of the regulations concerning such applications.
145. If in respect of each protection visa application the migration agent presenting it were obliged to furnish a statutory declaration to the effect that to the best of his or her knowledge and after reasonable enquiry, the claims made are truthful, some (although admittedly by no means all) of the false protection visa applications might perhaps be obviated. There is another aspect which is perhaps worthy of mention. In general terms nearly all “visitors” to Australia who come to stay must work and the fact that to do so is illegal does not appear to have any deterrent effect. This is so whether or not the passport and visa are false. Illegal work generally commences very soon after arrival and in some cases may have been pre-arranged. Employers who engage such persons can apparently do so without fear of legal consequences to themselves. Where a business establishment is raided illegal employees may be detained but the only consequence to the employer is temporary inconvenience. The position in the USA is very different and where employers must be much more careful. Without the ready availability of illegal work much of this traffic and which has results in so costly a burden to Australia might be obviated.
146. In Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted, at paragraph 35, that:-
.”16. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications … Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
147. In Beale and Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at paragraph 33, that:
“In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.”
148. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 at paragraph 47, Purvis DP stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. He person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
To reward the Visa Applicant with a visa in these circumstances would in my view be altogether incorrect.
149. The expectations of the Australian community might well be divided. Experience has taught me that regardless the Direction, character witnesses usually regard immigration law breaches rather less severely than the Direction requires. See for example, Sebastian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 497. But where a false passport is involved a rather more serious view would in all probability be taken. In my view a majority of the Australian community would expect that the visa be refused in these circumstances.
150. The interests of the child are primary. In the ordinary course, his best interests would be served by his being with both his parents. If that is not possible his best interests, at this young age, would be for him to reside with his mother. However, his father having brought him to Australia has refused to send him back or to take him back and live with his mother in China, notwithstanding that such a choice is eminently feasible and certainly desirable in the interests of the child. The child was born in China of Chinese parents. Means for his comfort are available. And the Applicant is assured of work and a comfortable house in China even if the standard of living is not as good as that obtained in Australia. The Applicant asks me to set aside the decision under review on the basis that the best interests of the child would be so served, in circumstances where he does not have proper regard to the same considerations. The Applicant’s evidence that he will, if the decision is affirmed, visit his wife annually speaks volumes. In the interests of life in Australia (referred to by Ms He as “heaven”) the Visa Applicant is at least so far as the Applicant is concerned, apparently to be sacrificed.
151. To refuse a visa will undoubtedly cause hardship to the Applicant but this is due entirely to the fact that he is making choices which suit him. And I do not believe that he was ignorant of her position. Her parents too were involved in the conduct which has given rise to this case; to the extent that they will also suffer hardship (although there was little evidence of that) they do not deserve as much consideration as might otherwise be the case, having regard to the fact that it is likely that they financed the false passport and visa.
152. Although this case has many of the classic components (false protection visa application, review by the RRT and section 417 application, coupled with illegal work), it is worse than most in the light of the false passport and the untruthful evidence before me; it was, even in a jurisdiction where untruthful evidence is only too often the norm quite extraordinarily untruthful.
153. This is not a case where the discretion can be exercised in favour of the Visa Applicant and accordingly the decision under review is affirmed.
I certify that the 153 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J. Block:
Signed: Neil Glaser
AssociateDates of Hearing 20 and 21 May 2004 and
8 and 9 July 2004
Date of Decision 6 August 2004
Counsel for the Applicant Mr Eric White
Solicitors for the Applicant Sam Issa of Firmstone LawyersSolicitor for the Respondent Ms Sharon Hanstein of Blake Dawson Waldron, Solicitors
5
0