Re Su and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 107

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 107

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/794

GENERAL ADMINISTRATIVE DIVISION		)
Re		Cai Lian Su

Applicant

And Minister for Immigration and Multicultural and Indigenous
Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date7 February 2005

PlaceSydney

Decision The decision under review is affirmed.

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

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – spouse visa application – refusal of application on the basis that the visa applicant fails the character test – past and present general conduct – examination of the visa applicant’s immigration misconduct including travelling to Australia on a false passport and visa and lodging two protection visas based on false information, providing further false information and breaching the no-work condition of his bridging visa – discretion that the tribunal may exercise where the visa applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant and visa applicant – found that the visa applicant does not pass the character test, his repeated and continuing breaches of the Migration Act are very serious, there is no evidence of rehabilitation and there is a real risk of fraudulent dealings with the Australian government and other bodies, granting a visa for serious fraudulent conduct would send entirely the wrong message to others contemplating such conduct, the community expects the migration program to be administered in a just and humane manner but the egregious behaviour of the visa applicant disqualifies him from favourable consideration, the grant of a visa to the visa applicant would be in the best interests of his young child – on balance the protection and expectations of the Australian community outweigh the best interests of the child – the decision of the respondent is affirmed.

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

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

ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

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

Re Diacodavid and Minister for Immigration and Multicultural and Indigenous

Affairs [2004] AATA 1129

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

ReLachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

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

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

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

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

REASONS FOR DECISION

7 February 2005	Professor GD Walker, Deputy President
Summary

1.       The visa applicant, Xian Yong Zhang, who is aged 26 and a citizen of the People’s Republic of China, came to Australia on 31 August 1998 on a business (short-stay) visa, obtained in a false name and with a fraudulently obtained Thai passport.  On 30 September 1998 he applied, in a false name and provided false and misleading information, for a protection visa which was subsequently refused.  On 14 May 1999, he applied for a second protection visa, again using a false name and providing false and misleading information.  That protection visa was also refused.  Mr Zhang remained in Australia as an unlawful non-citizen until granted a bridging visa on 11 January 2001, which was subsequently cancelled on 9 April 2003 when he was found to be in breach of the conditions of that visa and detained.  Mr Zhang departed Australia on 15 May 2003, and on 22 May 2003, applied for a spouse visa to live in Australia with his spouse, the applicant, Cai Lian Su.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Zhang arrived in Australia on a fraudulently obtained passport and visa, lodged two protection visa applications using false identifies and containing false and misleading information, that he remained in Australia as an unlawful non-citizen and worked in contravention of his bridging visa.  The respondent therefore refused Mr Zhang’s spouse visa application.  That is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Ms Su, was born in Guangdong, China, on 29 August 1980 and is aged 24.  Ms Su was granted Australian citizenship on 21 September 1998 (T p240).

4.      The visa applicant, Mr Zhang, was born in Fuzhou, China, on 24 November 1978, and is aged 26.   On 31 August 1998, Mr Zhang arrived in Australia with a fraudulently obtained Thai passport and on a fraudulently obtained subclass 456 business (short-stay) visa issued in the name of Kitti Chockijcharoenchai, which was valid until 30 September 1998 (T p121).   On 30 September 1998, Mr Zhang, using the false name of Kitti Chockijcharoenchai, born 3 August 1973, applied for a protection visa and was given an associated bridging visa.  His application stated he was a citizen of Thailand and that he suffered discrimination and political persecution in that country (T p11).  His protection visa was refused on 30 September 1998 (T p10) and the decision was affirmed by the Refugee Review Tribunal (“RRT”) on 16 March 1999 (T p121).  His bridging visa expired on 20 April 1999 (T p177).

5.      On 14 May 1999 (T p151), Mr Zhang lodged a second protection visa application, this time using the name of Qian Yong Li, born on 24 November 1978, stating that he was a citizen of China who had arrived in Australia “by boat” (T p306).  That application was refused on 9 June 1999 and the refusal was affirmed by the RRT on 10 February 2000 (T p151).  On 19 May 2000, Mr Zhang still using the name Li, applied for ministerial intervention which, on 8 June 2000, was denied.  He also applied on 19 April 2000 for a bridging visa E with permission to work (T p371) which was refused on 26 April 2000 (T p377).  On 11 January 2001, Mr Zhang, using the name Li, joined the Lie class action in the Federal Court of Australia (T p151), and was granted a bridging visa with conditions valid until 28 days after the determination of the Lie class action (T p382).

6.      On 23 September 2001, Mr Zhang met Ms Su at the wedding of a close friend of Mr Zhang (T p219).  They commenced a relationship on 2 December 2001 (T p196) and in late February/early March 2002, commenced living together (T p219).  On 22 August 2002, Mr Zhang proposed and on 2 November 2002, Mr Zhang and Ms Su were married at Hurstville, New South Wales.

7.      On 9 April 2003, Mr Zhang was located by immigration officials working illegally (T p384) and was detained at Villawood Immigration Detention Centre, New South Wales. His bridging visa was subsequently cancelled on 9 April 2003 because he was in breach of conditions 8101 (no work), 8505 (live at specified address) and 8506 (notify change of address two days in advance) (T p384).  When located, Mr Zhang admitted that he entered Australia on a false Thai passport that he bought from a “snakehead” in Thailand and that he was the owner of a construction company (T pp397-398).  On 2 May 2003, Mr Zhang was released from detention and on 15 May 2003, accompanied by Ms Su (T p179), he departed Australia.

8.      On 16 May 2003, Mr Zhang’s then migration agents, Raif Thevar Wu & Associates, lodged a subclass 309 spouse (provisional) visa application, using Mr Zhang’s true identity, at the Sydney office of the then Department of Immigration and Multicultural Affairs (“DIMA”) for lodgment at the Australian Embassy in Guangzhou (T p188).  The application was received by the Embassy on 22 May 2003 and on 28 May 2003, the Australian Consulate General informed Mr Zhang that his application had been placed in a queue and would be dealt with as soon as possible (T p182). 

9.      On 2 July 2003, Mr Zhang attended an interview at the Australian Embassy in Guangzhou (T17 pp154-164).  Mr Zhang admitted that he bought the Thailand passport and travel documents in the name of Kitti Chockijcharoenchai from a Lao Wang for 50,000 RMB, which was paid by his father.  (In Mr Zhang’s supplementary statement filed with the tribunal (Exhibit A5) he said that the sum paid was in fact 150,000 RMB, which was obtained from his family and friends).  He also admitted that he worked in Australia without permission using either the false names of Kitti Chockijcharoenchai or Qian Yong Li or his true identity.  He also stated that Ms Su knew that he was using a false passport (T p160).  Ms Su was also interviewed on 2 July 2003.  At her interview, Ms Su admitted that she knew Mr Zhang was in Australia unlawfully (T p162).  Ms Su returned to Australia on 3 August 2003 (T p126).  On 10 August 2003, Ms Su returned to China to reside with Mr Zhang.

10.     On 16 July 2003, Mr Zhang’s spouse visa application was refused on the grounds that the applicant failed to satisfy the criteria in s 309.211 of the Act, as the information to hand led the officer “to conclude this is another attempt by the [visa] applicant to gain lawful entry to Australia” (T16 pp148-153).   An application for a review of this decision was lodged with the Migration Review Tribunal (“MRT”) which, on 20 February 2004, decided that Mr Zhang and Ms Su were in a genuine relationship and thus met the criteria under ss 309.211, 309.212, 309.213 and 309.221 of the Act for a genuine marriage (T p117).  On 20 February 2004, the RRT provided the consulate general in Guangzhou with a copy of its decision (T13 p114).

11.     On 1 January 2004, Ms Su returned to Australia and on 11 April 2004, Mr Zhang’s and Ms Su’s daughter, Erika, an Australian citizen, was born.

12.     On 28 April 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), Brisbane Character Assessment Unit, informed Mr Zhang that he was considering refusing his spouse visa on the ground that he did not pass the character test because of his past and present general conduct including that he lodged two protection visas using fraudulent documents and based on false and misleading information, and that he had breached the terms of a bridging visa in that he worked illegally and remained in Australia as an unlawful non-citizen (T6 p71).

13.     On 26 May 2004, Mr Zhang’s then migration agents, Raif Thevar Wu & Associates, made submissions to DIMIA’s Character Section, acknowledging that he had engaged in some of the conduct described in the notice of intention, including providing false and misleading documents, but that did not mean he was not a person of good character.  They submitted Mr Zhang did not willingly provide false information to the Department, but did so, on the advice of his advisor.  The offences he committed presented no risk to the security or well-being of Australia.  Notwithstanding this, Mr Zhang was a person of good character and his behaviour “should be exonerated by his youth, lack of English and understanding of the relevant legal requirements and incorrect advice”.  The agent also submitted that Mr Zhang was now the father of the couple’s first child, Erika, born in April 2004, who is an Australian citizen and that it was important for the child’s well-being that Mr Zhang be allowed to come to Australia to live with his wife and daughter (T5 pp47-55).  The migration agent also lodged a statutory declaration by Ms Su, stating that her daughter is difficult and that she needs her husband to assist her with caring for the child and that she could not live in China with the child because of her worries about “toxic baby milk powder” in China, air pollution, lack of Medicare, and that her daughter, as a foreigner, would have no rights in China (T pp56-57).

14.     On 6 June 2004, Ms Su returned to China with Erika. 

15.     On 11 June 2004, a delegate of the respondent decided to refuse Mr Zhang’s subclass 309 spouse (provisional) visa application on the ground that he did not pass the character test because of his past and present general conduct, and having exercised his discretion to refuse the grant of a visa to Mr Zhang (T2 pp5-22).  Mr Zhang was notified of the decision, care of his migration agent, on 16 June 2004.   On 30 June 2004, Ms Su’s solicitor lodged an application for a review of this decision by the tribunal.

16.     In early September 2004, Ms Su returned to Australia to look for work, leaving Erika in China in the care of Mr Zhang and his family.  On approximately 12 October 2004, Ms Su returned to China and 12 November 2004 she returned again to Australia, bringing Erika with her.

17. At the hearing of this matter, the applicant was represented by Ray Turner, solicitor, and the respondent was represented by Catherine Petre and Gretchen Bennett, solicitors, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken collectively into evidence, together with a supplementary bundle of documents, as Exhibit R1, together with the evidence tendered by the parties at the hearing. Ms Su gave oral evidence in person and Mr Zhang gave evidence by telephone from China. For the respondent, Sofia Maniam gave oral evidence by telephone.

Relevant Law and Policy

18. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:

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

…

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

…

(ii)       the person’s past and present general conduct;

the person is not of good character; …

19. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

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

Issue

20. The issue for the Tribunal to determine in this case is, therefore, whether Mr Zhang is not of good character having regard to his past and present general conduct so as to be precluded from the grant of subclass 309 spouse (provisional) visa. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence

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

22.     Mr Zhang gave oral evidence via a telephone connection.  A Mandarin interpreter was sworn in to assist him with the giving of his evidence. 

23.     The respondent has used evidence of the visa applicant’s past and present general conduct in support of her contention that Mr Zhang does not pass the character test.  That evidence was directed to the following aspects of his conduct:

(a)      obtaining a false Thai passport and Australian business visa by means                  of a corrupt payment;

(b)      entering Australia using the false passport and fraudulently obtained   visa;

(c)       providing misleading information to the department in relation to his   visa application, arrival and departure cards;

(d)      lodging a protection visa application in the false Thai name of Kitti   Chockijcharoenchai;

(e)      providing false and misleading information to the department in his   protection visa application, including  that he was born in Bangkok,   Thailand; that he was a Thai citizen by birth and had lived in Thailand              from 1973 to 1998, and that he had suffered discrimination and political            persecution in Thailand, and would face it again if he were to return to                  Thailand;

(f)       lodging a second protection visa in the name of Qian Yong Li (date of                    birth 24 November 1978);

(g)      providing false and misleading information to the department in his   second protection visa application, including that he had departed from                 the People’s Republic of China on 1 April 1999, arriving in Australia on             24 April 1999 “by boat” and that he had resided in China from 1978 to             1999;

(h)      breaching certain conditions of his bridging visa E, specifically 8101   (no work), 8505 (requirement to live at a specified address), and   8506 (requirement to notify any change of address two days in   advance).

24.     The applicant’s statement of fact and contentions (Exhibit A1) explicitly admits Mr Zhang’s arrival in Australia on 31 August 1999 under the false Thai name, the lodgement of the first protection visa application on 30 September 1998 under that name, and the application for review of the decision refusing that application by the RRT.  The applicant also admits the second protection visa application lodged in the name Qian Yong Li.  The statement of fact and contentions does not deny the visa applicant’s use of a false passport and visa or the furnishing of false information in connection with the passport, the visa and the protection visa applications, or the breach of the bridging visa E condition relating to not working. 

25.     The applicant does, however, dispute that the second protection visa application was lodged in a false name, and states that the discrepancy in the spelling of the visa applicant’s middle name was due to a translation error in the Chinese birth certificate.  The applicant also disputes that the Migration Law contraventions relied on by the respondent are sufficient to support a finding that the visa applicant fails the character test.

26.     At the interview conducted in Guangzhou on 2 July 2003 (T pp154-164), Mr Zhang described how he had crossed the mountains from China to Thailand in 1998 as a member of a group of six people.  On arrival the group was conducted to a room that had been arranged for them.  There, according to the evidence given at the hearing, they were placed in contact with a “snakehead”, a Chinese term referring to a person involved in organised crime and specifically in people-smuggling.  This person bribed someone to arrange for a Thai passport in a Thai name, and an Australian business visa in that name, as well as an airline ticket to Australia. 

27.     He said at the hearing that he did not know at the time what a “snakehead” was, nor did he know that he had been supplied with a false passport and visa until he boarded the flight.  He did not know that what he was doing was illegal and would not have done it if he had been aware of its illegality.  He repeatedly said that he knew none of these things because he was too young at the time.  He admitted, however, that he arranged for payment of 150,000 RMB for the false documents and the ticket.  The money had been raised from family and friends, and was transferred by his father to the “snakehead’s” account after his arrival.  When asked what he thought he was getting for the 150,000 RMB, he gave a long and discursive answer to the effect that when he was in China someone asked him if he would like to go to Australia, and knew how to arrange it.  He did not know what he would be getting for the money, again claiming that he was too young to understand such things. 

28.     These claims of youthful ignorance cannot be accepted.  Even if Mr Zhang was initially unaware of what he was getting into, he must have discussed the enterprise with his father, who transmitted the funds, and with the other family members and friends who also contributed money. Fujian city and province are a notorious centre for the sale of false passports and other travel documents (T p362) and it is inconceivable that none of the people from whom he raised the money mentioned the obvious illegality of the proposed venture. 

29.     Mr Zhang arrived in Australia from Thailand on 31 August 1998.  He was met by someone who took him to a temporary location where his uncle, who lives in Australia, came to collect him.  His uncle found him employment and a place to live and introduced him to an agent named Hai Liang Xue who helped him to lodge a protection visa application a week after his arrival.  Xue knew that Mr Zhang had used a false passport to enter Australia and advised him to use the false name in the protection visa application. 

30.     At the hearing Mr Zhang admitted at the time that he knew he was unlawfully in Australia and that a false name and false information had been used in the protection visa application.  He denied knowing the grounds on which the application was made, claiming that they were prepared by the agent without his knowledge.  Nevertheless, as he was aware that the application was lodged in a false Thai identity, he must have known that any grounds of alleged persecution in Thailand must also be false.

31.     When the protection visa application was refused, Xue helped Mr Zhang to lodge an application for review with the RRT (T p61).  When that application was in turn rejected by the RRT, he asked Xue what he should do.  Xue told him to obtain his birth certificate from China and use it to lodge a fresh protection visa application.  He telephoned his father and asked him to send his birth certificate to him.  On receiving it he found that his middle name had been misspelt in English – it was supposed to be Xiang, not Qian, but the Chinese characters were correct (T pp61, 216).  He brought this misspelling to his agent’s attention, but Mr Xue said the error was of no consequence and proceeded with the second protection visa application with the incorrectly spelt name. 

32.     Mr Zhang denies that there was any intention to mislead the government behind that action (T p62).  While it sometimes happens that successive protection visa applications are made under names spelt slightly differently from the name used in a previous application in order to overcome the ban on multiple applications, this does not seem to be such a case because there was no other application in a similar name.  Further, his protection visa application dated 8 May 1999 points out and explains the discrepancy (T p328).  It may also be noted that Mr Zhang changed his name from Li to Zhang on his marriage for reasons said to be connected with his family background and upbringing (T pp62, 157).  There does not appear to be any improper motive behind that change either. 

33.     The second protection visa application also contained false information.  It said that he had left China on 1 April 1999 and arrived in Australia on 24 April 1999 “by boat” and that he had lived in China from 1978 to 1999.  The visa applicant denied any knowledge of those false statements.  The evidence he gave of quite specific conversations with the agent on matters material to his visa applications, however, makes it more probable that he was in fact aware of the false statements in that application. 

34.     At the hearing Mr Zhang admitted that he had worked illegally, including two years as a labourer with a truck (or trucking) company, and admitted that he knew he was breaking the law at the time.  He explained his conduct by saying his family was in financial difficulties as a result of paying the 150,000 RMB to the “snakehead” and that he wanted to work in order to help them repay the money they had borrowed.  He also admitted at the hearing that he knew before he was married that he could be removed from Australia and would in that event be unable to stay here with his wife.  He had earlier admitted that his wife and his parents knew before the marriage that he was in Australia unlawfully (T p161).

35.     As late as the interview on 2 July 2003, Mr Zhang was persisting with unfounded claims of persecution.  He stated that he came to Australia because he was forced by the government to leave China and had no choice in the matter (T pp155-156) and that he went to great lengths to remain in Australia because he feared that the Chinese government would prosecute him, his parents and his family (T p161). 

36. The evidence specifically related to the exercise of the s 501 discretion was mainly concerned with Mr Zhang’s marriage to the applicant Ms Cai Su, an Australian citizen, and their child Erika, who is also an Australian citizen. The history of the marriage is outlined above. On 20 February 2004 the Migration Review Tribunal determined that the marriage is a genuine spousal relationship and the hearing before this tribunal was conducted on that basis.

37.     The evidence before the hearing showed that Ms Su knew that Mr Zhang was in Australia on a false passport and they both knew that his presence in Australia was unlawful (T pp125, 160, 161, 163).  Mr Zhang admitted that he entered into the marriage not knowing whether he would be able to stay in Australia with his wife or not (T p161).

38.     At the hearing, Ms Su said that she first became aware of Mr Zhang’s entry into Australia on a false passport two weeks after meeting him.  When asked whether she realised her prospects of staying with him in Australia were uncertain, she repeatedly said that she did not understand the question, that she did not know how to answer it.  She went on to claim that she did not know that using a false passport to enter Australia was unlawful and that she did not understand the significance of the false passport and visa until six months after the marriage.  When it was again put to her that she knew about his fraudulent entry and conceived a child with that knowledge, she again replied that she did not know how to answer the question.  Those evasive and improbable answers are not credible.

39.     Following their marriage in November 2002, the couple endeavoured to conceive a child.  When conception did not occur in the first few months they sought medical advice and Ms Su entered hospital for some checks, presumably some time in early 2003 before her departure on 15 May 2003 (T pp60, 126, 162).  The problem, if there was one, appeared to rest with Ms Su’s general health (T p126).  When Mr Zhang left Australia following his release from detention on 15 May 2003, Ms Su accompanied him.  In June 2003, while she was in China, Ms Su had an operation in Fuzhou for removal of a breast tumour (T pp60, 163).  Two months later she discovered that she was expecting a baby. 

40.     Shortly before that, at his interview on 2 July 2003, Mr Zhang was asked about their endeavours to have a child.  It was put to him that they were trying to have a baby despite him being unlawful in Australia.  He answered that he and his wife both liked babies.  Asked if he knew it would help him in gaining the right to stay in Australia, he replied “I don’t know”.  That reply was simply not credible, coming from someone with Mr Zhang’s experience with a false passport and visa, who had made two false protection visa applications and associated RRT appeals and s 417 requests for ministerial intervention, who had frequent dealings with migration agents, who had pursued a successful Migration Review Tribunal appeal on the genuineness of his marriage and had joined in a class action apparently based on his alleged refugee status (T p151).  It seems probable that the high priority the couple placed on having a child as soon as possible was substantially connected with a desired migration outcome. 

41.     Erika was born on 11 April 2004.  She is apparently a fretful child.  Her mother found it hard to take care of her and was getting very little sleep.  She felt so physically drained that after discussing the problem with her husband she agreed that they would send Erika back to China temporarily.  That would also give Mr Zhang and his parents the opportunity to see the baby (Exhibit A4).  She departed for China taking Erika with her on 6 June 2004, returning to Australia on 26 June, having been advised to be back here to deal with the present appeal (Exhibit A4).  Erika remained in China where her father and grandparents took care of her until Ms Su arrived in November to collect her. 

42.     In her statement Ms Su said that Erika “is Australian citizen and she should have the same right as other Australian kids.  She should grow up in an English speaking environment, learn to speak English and receive the education here in Australia which is better than in China.  She has the right to choose to grow up in Australia.  I do not want her to receive education in China as the fact that she is not Chinese citizen will bring up the education cost and other living cost.  Meanwhile, if she stays in China she cannot learn good English.  The education systems in the two countries are very different, my daughter should not stay in China” (Exhibit A4). 

43.     At the hearing Ms Su said that she had not considered what it would be like for Erika to live permanently in China but repeated her views on the different quality of life in the two countries, adding that the environment is better in Australia and the medical services in rural China are poor.  Travelling to the city for medical treatment is inconvenient, involving bus and ferry travel – although, of course, Ms Su herself had a successful operation in Fuzhou in June 2003.

44.     Ms Su reiterated that Erika is Australian and can choose where she wishes to live.  When she is growing up, if she knows she is Australian and has been deprived of Medicare and similar services, “she will blame us”. 

45.     The respondent called Ms Sofia Natasha Maniam, a legal officer at the Department of Immigration and Multicultural and Indigenous Affairs to give evidence by telephone relating to the preparation of a “Country Information Report” on the conditions for Australian citizens in the People’s Republic of China.  She explained how she had approached the Protection Decisions Support (“PDS”) team, which takes care of the department’s database relating to conditions in various countries of the world.  With her assistance, an officer of the PDS team drafted certain questions about the conditions that the Australian wife and child of an Chinese citizen could expect if they returned to live in China.  The report containing the questions and the answers prepared at the Australian post in Beijing comprised the report.  The report dated 20 October 2004 was admitted, over objection, as Exhibit R3.  Although, as Mr Turner pointed out, the report is hearsay, it is an up to date document prepared by Australian officials located in China whose duties include the preparation of such reports.  I consider it reasonably reliable.

46.     The main points elicited by the report was that both spouse and child would be treated as Australian citizens.  Chinese nationality law does not recognise dual nationality for any Chinese national, but there is no requirement that would compel the spouse to become a Chinese citizen.  The Australian wife and child would not have any particular difficulties in leaving China whenever they wished in the future. 

47.     The report continued:

The level of major public services generally made available to PRC nationals in China varies from region to region, but may include up to nine years of compulsory education, some health services and some social security.  We are not aware of any legal basis on which authorities would deny benefits available to any child of PRC nationality legally resident in China.  If the mother and child retained their Australian citizenship and were thus not Chinese citizens they may be required to pay a fee to access public services offered to Chinese citizens.

Increasingly in China, people have access to privately-provided health, education and other services which have developed in response to market demand.  The precise terms of the services and the way they are accessed vary widely across the country and between urban and rural areas.  Large cities along the coastal region have the best range of services. 

48.     The report stated that an Australian living in China would need Ministry of Labour permission to find work, but would have no legal impediment if he or she became a Chinese citizen.  Australian citizens with Chinese relatives would be eligible to apply for Chinese citizenship. 

Application of the Law and Findings of Fact

49. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Mr Zhang passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

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

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

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

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

51. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)). Mr Turner argued that, in light of the preamble to Direction No 21 and paragraph 1.12, in order to apply s 501(6)(c)(ii) it was necessary to determine that there is “a significant risk” that the person will engage in the specified conduct in the future. But as Ms Bennett pointed out, paragraph 1.12 only applies to s 501(6)(d), not to s 501 (6)(c)(ii). Further, I do not think the general reference to “abhorrent” actions can restrict the specific terms of paragraphs 1.9(a), (b) and (c).

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

53.     Before making a decision on whether Mr Zhang passes the character test, it is appropriate to set out my findings of fact on that issue.  I find that Mr Zhang did obtain a fraudulent passport and Australian business visa by means of a corrupt payment and that in so doing was knowingly involved with a person engaged in organised crime, known as a “snakehead”, and who, specifically, engaged in people-smuggling; that he entered Australia using a fraudulent passport and visa, that he provided misleading information to the department concerning his visa application, arrival and departure cards, that he lodged a protection visa application in a false name and on false grounds, pursuing them through the process of an RRT appeal and an application for ministerial intervention under s 417; that he lodged a second protection visa application under a different name, providing further false information and that he breached the no-work conditions of his bridging visa. 

54. In addition, he gave false information to the department in connection with his spouse visa application. In his interview on 2 July 2003, he denied owning the four- wheel drive vehicle shown in the photograph on T p60, saying that it belonged to a friend named Jim, and also said that the house in front of which the vehicle was standing belonged to Jim. But those statements were false, as the vehicle belonged to Mr Zhang and the house was where he lived with Ms Su (T pp83, 127, 141, 143, 152, 160, 162). He also denied having any relations in Australia, when actually he had a paternal uncle here. He later explained the uncle was not an Australian citizen and he did not want to get him into trouble (T pp 83, 127, 152). Finally, his evidence before the tribunal was evasive and his frequent claims of ignorance were not credible. I therefore find that Mr Zhang does not pass the statutory test in s 501.

55. Having decided that Mr Zhang does not pass the character test, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to him. In exercising this discretion, the tribunal must have regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

56.     Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

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

58.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”. 

Protection of the Australian Community

59. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. Mr Turner submitted that Mr Zhang should not be treated as having deliberately concocted his false documents and representations. His wrongdoing was “not to care”. He wanted to come to Australia and earn money and did not care how he achieved that objective. But that still involved knowingly making false representations and using a false passport and visa for the specific purpose of obtaining a migration benefit to which he was not entitled. His reckless attitude towards the law cannot be regarded as a mitigating factor. I find that the visa applicant’s repeated and continuing breaches of the Migration Act are very serious.

60.     As regards the second factor, the risk of recidivism, it was argued that if a spouse visa (albeit a temporary one) were granted, there would be no risk that the conduct would be repeated because there would be no occasion for it.  While it is true that Mr Zhang in that event would have what he had wanted and lied for all along, that can hardly be a satisfactory answer, quite apart from the tacit premise that all is well if the offender has succeeded in profiting from his own wrong.  The visa applicant has shown a continuing disposition to use deceit to advance his interests, including at the interview of 2 July 2003 and in his oral evidence at the hearing.  He made partial disclosure of his migration offences, but only after the department detected him working illegally, cancelled his visa, and he had returned to China.  There is no evidence of rehabilitation and I consider that there is a real risk of further fraudulent dealings with Australian governments or private bodies. 

61.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  Mr Turner contended that as character cases have been coming before the tribunal for many years, and continue to do so at a seemingly unabated rate, visa refusal must be devoid of deterrent value.  “If there is a deterrence in refusal”, he said, “the tribunal would have seen it by now”.  It does not follow, however, that a continued incidence of prohibited behaviour means that non-enforcement of the law would have no effect.  After all, the criminal courts are every day filled with trials for offences that have been prohibited for centuries, but no-one suggests that regular convictions for those offences have no deterrent value.  It is true, though, that the deterrent effect of a particular decision is impossible to prove in advance.  The concept is, therefore, perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.  Past cases before the tribunal reveal a regular incidence of fraudulent applications and attempted fraud in China (see, for example, Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 at paragraphs 112 and 127; Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828 at paragraph 50; and Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038 at paragraph 70). In this case, the visa applicant admitted paying 150,000 RMB for his false documents, in addition to his other contraventions of the law. To grant a visa to a person who has admitted such a wide range of seriously fraudulent actions would send entirely the wrong message to others who might be contemplating such conduct.

Expectations of the Australian Community

62.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

In my view the community expects that the migration program will be administered in a just and humane manner.  That implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.  In this case I believe the community would expect that a visa would not be granted.  It was argued that community expectations would not overwhelmingly oppose the grant of a visa because of the presence of an Australian citizen child in this case.  That may be so, but I remain of the view that the egregious behaviour of Mr Zhang would be viewed as disqualifying him from favourable consideration.  The interests of the child are discussed separately below.

The Best Interests of the Child

63.     The third primary consideration is the best interests of the child.  The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.

64.    In this case, Mr Zhang and Ms Su have a daughter, Erika, born at Auburn, New South Wales, on 11 April 2004, and who is an Australian citizen, whose best interests must be considered.  The child was conceived when Ms Su was residing in China with her husband.  The child was until recently living in China with Mr Zhang and his family to enable Ms Su to look for work in Australia.  The best interests of the child are a primary factor.  In the ordinary course, Erika’s best interests would be served by her being with both her parents.  If that is not possible, her best interests, at this young age, would be for her to reside with her mother.  The evidence suggests that the urgency with which the couple treated having a child stemmed from the desire to facilitate a favourable visa outcome for Mr Zhang.  Some migration agents in Australia apparently do advise non-citizens to have a baby to improve their chances of obtaining permanent residence (see Re Diacodavid and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1129). But the interests of the child must be considered without reference to the circumstances of her birth.

65.     If a visa is refused in this case, and leaving aside the possibility that both parties might take up residence in a third country, arranging for the child to be brought up by both her parents would mean the applicant’s moving to China, where the couple would probably live, at least initially, with his parents, as is customary there.  For a young couple to live for any length of time with the wife’s parents is apparently viewed unfavourably in Chinese culture.

66.     The applicant raised a number of objections to the prospect of the child being raised in China.  In light of Exhibit R3, the main concerns requiring consideration are those related to health and education.  As regards health, she referred to the discovery in China that a large quantity of milk powder prepared for babies had been contaminated and that children in various parts of China had suffered injury as a result.  She arranged therefore to take a quantity of powdered baby formula with her when she took Erika to stay with her grandparents in China this year.  If the problem with the Chinese product has not yet been corrected, there appears to be no reason why she could not arrange for her parents in Australia to continue sending supplies of baby formula to her in China until the child moves on to other foods.  Mr Turner was unable to supply any up to date information on the milk powder problem, but stated that the issue is a real fear that Ms Su has, though it may not be a rational fear. 

67.     Ms Su also mentioned that air pollution is worse in China than in Australia, but there is no evidence that the difference is likely to impair Erika’s health or development.  She also mentioned the availability of Medicare in Australia and the fact that the full range of health services is not available in rural China.  That, of course, is a problem in rural areas everywhere, and it is clear from the evidence that modern health and medical services are available in Chinese cities, especially in the coastal areas.  Ms Su herself had an operation in Fuzhou in 2003 for removal of a tumour, when she would have been eligible to have the operation performed in Australia under Medicare.  Nevertheless, it is reasonable to infer that the general level of health services readily available to Erika in the Sydney area would be higher than that in rural China.

68.     The education systems in China and Australia are undoubtedly different, as Ms Su says.  It would be easier for Erika to learn fluent English in Australia than in China, a significant matter for an Australian citizen.  On the other hand, in the commercial world of the 21^st century, a good knowledge of Mandarin is likely to be an asset for a young Australian citizen. There is no evidence, moreover, that the standard of education in China is in any general sense inferior to that available in Australian public school systems.  Indeed, the continuing controversies over the “whole language” method of teaching reading and “fuzzy” mathematics instruction have led critics to argue that Australian education suffers from a certain lack of rigour.  It does appear that because Erika is not a Chinese citizen her parents would have to pay some school fees, but many parents in Australia choose to do that also in order to obtain for their children the type of education they prefer.

69.     Mr Zhang and Ms Su imply they would be unable to pay fees for health or education, but the evidence shows that they do seem to have access to funds for a variety of purposes, starting with the 150,000 RMB that Mr Zhang paid for his false Thai passport and visa.  Throughout his dealings with the department he has tended to give an understated picture of his financial position in Australia.  At the hearing he said that he worked as a labourer, but it is clear that he was the founder and sole owner of his own company, Kitti Constructions, which was quite successful (T pp88, 122, 143, 162).  (Kitti, of course, was the given name shown in his false Thai passport.)  He was able to purchase the new four-wheel drive vehicle shown in the photograph (T p260) using a deposit of $5,000 which was a gift from Ms Su’s father.  At first he denied owning the vehicle, saying it belonged to a friend called Jim, but as his wife in a separate interview admitted that he owned it and that it was worth about $60,000, he had to confess the truth.  He in fact owned two cars, one of which he purchased for $33,000 about a month before he met his wife, and the second which he bought about a month before the wedding (T pp121, 127, 152, 162).  Mr Zhang paid for the wedding reception for 100 people at Forest Court, Hurstville (T pp126, 160, 163, 220), apparently using a cheque from his business (T p77).  He initially denied living in the rather commodious house pictured at T p260, where the couple were in fact residing.  Earlier last year they had a credit of $37,000 in their bank account (T pp123, 129).

70.     The review applicant said at the hearing that as an Australian citizen, Erika has the right to live in Australia if she so chooses.  That is quite correct, but until she is able to take care of herself she could have a reasonable upbringing and education with both her parents in China.  She would have the benefit of being with her father’s family.  The process of relocation would cause her some discomfort, but as the respondent says, any hardship effects from the relocation would be very limited as the child is less than one year old.  Overall, however, and subject to the qualifications mentioned above, the grant of a visa to her father would be in her best interests as it would enable her to live in Australia, her country of citizenship, with both parents.

Other Considerations

71.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct;  and whether the application is for a temporary visa or permanent visa.

72.     In this case, the refusal to grant a visa would not disrupt Mr Zhang’s family, all of whom, except for the applicant, reside in China.  All of Ms Su’s family live in Australia and her relationship with them would be disrupted if she were to relocate to China to live with her husband and daughter.  On the other hand, her husband’s family in China would provide her and Erika with a support network. 

73.     Mr Turner stressed the hardship that separation from her husband was causing to Ms Su.  In his report dated 17 May 2004 (T p68), Mr Wilson Wong, a clinical psychologist, diagnosed her as suffering from “a mild depression reacting to the fact that her own family were separated“ and noted her view that the trauma would only be mended by her being reunited with her husband in Australia.  Mr Turner also pointed out that a recent certificate supplied by her general practitioner does not use the word “mild” (Exhibit A6).  As against that, Ms Su knew at the very least that Mr Zhang was in Australia on a bogus Thai passport and a falsely procured visa two weeks after first meeting him.  Her evasive and non-credible answers to questions on that subject at the hearing suggest that she knew and understood a great deal more than that and that she married him aware that he might not be able to live in Australia.  In ReLachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, the applicant, Mrs Lachmaiya, was older and in a much more precarious state of health than Ms Su in this case, suffering from physical aliments as well as severe depression that had caused her to be hospitalised several times. McMahon DP considered that her distress and hardship had to be set against the fact that she knew about some of her husband’s wrongdoing, and in particular his use of a false passport, before the marriage. Mr Turner pointed out that Re Lachmaiya (supra) was decided in 1994 when the legislation was different.  Nevertheless, it involved the exercise of a discretion similar to the current one and is still apposite. 

74.     On balancing all the factors, I therefore find that the protection and the expectations of the Australian community outweigh the best interests of the child and the other considerations in this case.

75.     The decision under review is affirmed.

I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

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

Date/s of Hearing  22 and 23 November 2004 and 27 January 2005
Date of Decision  7 February 2005
Solicitor for the Applicant          Mr R Turner
Solicitor for the Respondent     Ms C Petre and Ms G Bennett, Clayton Utz