Re Zhang and Minister for Immigration and Citizenship

[2007] AATA 1617

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1617

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1666

GENERAL ADMINISTRATIVE DIVISION		)
Re		KAN MIN ZHANG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal The Hon R.N.J Purvis, AM, QC, Deputy President

Date1 August 2007

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd].........................

The Hon R.N.J Purvis, AM, QC              Deputy President

CATCHWORDS

MIGRATION – refusal to grant spouse visa – Applicant made false representation in visa application – overstayed visa – worked without consent – Applicant a person not of good character – discretion considered – conduct that needs to be deterred – emphasis on protection of the Australian community – expectations of the Australian community – awareness of migration misconduct at time of marriage – awareness of possible difficulty in re-entering Australia at time child was conceived – best interests of the child – decision affirmed

LEGISLATION

Migration Act 1958 – sections 234 and 501

CASE LAW

Re Woo and Minster for Immigration and Multicultural Affairs [2006] AATA 271

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

REASONS FOR DECISION

1 August 2007 The Hon R N J Purvis, AM, QC, Deputy President       

The application

1. In this application the review Applicant, Mr Kan Min Zhang (“Mr Zhang”) is appealing against a decision of a delegate of the Minister for Immigration and Citizenship (“the Respondent”) to refuse to grant to Ms Xiu Zhen Huang (“Ms Huang”) a Combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa. The visa was refused on the ground that Ms Huang did not, within the meaning of section 501 of the Migration Act 1958 (“the Act”), satisfy the character test. The discretion available to the Respondent was not exercised in her favour.

2.        The reasons for the delegate’s decision relevantly state in respect to the character test, and there is no issue in the appeal as to the correctness of his findings:

“2. The adverse conduct engaged in by Ms HUANG is listed in the issues paper under the heading “Findings Against the Character Test”. The conduct that gave rise to this assessment can be summarised as:

·10 January 2001 – Ms HUANG arrived in Australia on a fraudulently obtained South Korean passport, in the false name of KIM Nam Rye and false date of birth 23 January 1959 – the passport had an Electronic Travel Authority allowing a stay of three months from date of arrival – Ms HUANG had paid RMB85,000 (about AUD13,000) for the passport and visa, and her purpose in coming to Australia in the false identity was to earn money working;

·30 March 2001 – Ms HUANG applied for and was granted a long stay visitor visa in Australia, again using her fraudulently obtained South Korean passport containing a false identity (name and date of birth);

·28 June 2001 – Ms HUANG applied for a student visa in Australia, again using the same false documents and identity;

·21 May 2002 – Ms HUANG’s application for the student visa was refused and she applied for review of this decision with the Migration Review Tribunal (“MRT”), again using the false identity throughout the review process;

·2 December 2002 – Ms HUANG’s review with the MRT was unsuccessful and she failed to depart Australia, becoming an unlawful non-citizen on 8 January 2003;

·8 January 2003 to 9 May 2005 – Ms HUANG remained in Australia unlawfully;

·Ms HUANG worked illegally in Australia for unspecified periods;

·14 July 2005 – Ms HUANG provided false and misleading information in her application for migration to Australia by failing to declare that she had previously been refused a visa in Australia and that [she] had held a Bridging Visa E (“BE”).

3. At the time of her arrival, Ms HUANG was a mature-aged woman of about 30 years of age. She has knowingly paid a substantial amount of money to acquire a false identity and travel documents in another citizenship, and set out on a pre-determined plan to come to Australia to work illegally. She has then continued to remain in Australia using a false identity in further visa applications and to the MRT, without at any stage coming forward with her true identity until she had married her sponsor, Mr Zhang …

4. … given that using a false passport and identity to enter a foreign country and apply for visas deprives that country of the sovereign right to determine who and who should not enter, for reasons of national security and the orderly management of migration and benefits, I consider that the actions are indeed very serious. Ms HUANG has used her false identity not once, but on several occasions including to the review tribunal.

…

7. Ms HUANG’s … current application … form clearly indicates at Part K and Part N that she was assisted by a registered migration agent, and the annotation alongside the declaration where she signed the form indicates also that the services of an interpreter were used. The questions are not ambiguous, particularly that concerning whether Ms HUANG had previously had a visa refused …

8. I notice a trend throughout Ms HUANG’s responses to the above conduct, of apportioning blame to others, citing such things as common practices in China, the influence of her former agent Mr Coroneos, and advice from others in the Chinese community, rather than accepting responsibility for her own actions.

9. The above series of incidents includes numerous offences under Section 234 of the Migration Act 1958 (“the Act”), each of which attracts a maximum sentence of ten years imprisonment. Ms HUANG also succeeded for a lengthy period in her aim of staying in Australia and working, of which more than two years was with no visa at all, also an offence under the Act.

…

16. … apart from having lodged her current application there is no evidence of good conduct, or “good acts” as referred to in the Direction, other than what could be termed “inactivity” while she pursued her current spouse migration application …

18. … I have considered all of Ms HUANG’s conduct from her first dealings with Australia in 2001 until the present, a period of some five years. For the majority of that period, Ms HUANG has been dishonest in relation to the Australian government and the community and has executed a pre-determined plan to achieve her own objectives with no regard for the cost to the community of which she now seeks to become a part. I find that any evidence of good conduct over the same period is negligible when compared to the degree and duration of dishonest and fraudulent conduct …”

3.        As to the exercise of the available discretion, it was stated:

“Seriousness and nature of conduct

…

24. … I find that the evidence of good conduct is minimal when compared to the degree and duration of fraudulent and dishonest conduct. I have given significant weight to this primary consideration.

Likelihood that the conduct may be repeated

25. Ms HUANG has been prepared to provide false and misleading information on several occasions over a prolonged period of time in a pre-determined plan to achieve benefits to which she otherwise would not have been entitled.

…

29. If Ms HUANG is successful in the current visa application after such a series of offences of dishonesty against the Australian community in order to progress her personal objectives, I cannot discount the risk of her engaging in further dishonest conduct in order to obtain other types of benefits should she be granted the visa and allowed to migrate. I have given significant weight to my finding in relation to this consideration.

Deterrent to others

…

34. For the above reasons, I consider that granting the visa in Ms HUANG’s case after such blatant and serious fraud involving the use of a false identity would send entirely the wrong message to those who know her, including those in her home town from where many people have and continue to take a similar path. I have given significant weight to the deterrent value to others in making this decision.

Expectations of Australian Community

…

38. In cases where the best interests of an Australian citizen child are involved (considered below), the expectations of the Australian community may vary, but the seriousness of a person’s misconduct may still be viewed as outweighing the best interests of the child, provided such interests are not overly compromised. Such a scenario was discussed by Deputy President Walker in Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107 (7 February 2005):

“62. 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.”

39. The Australian community would not expect people who arrive in and remain in Australia by such fraudulent means and by overstaying and working illegally, to be able to benefit from those actions. While Mr Zhang may expect that the visa should be granted in these circumstances, the broader expectation of the Australian community in my view, as indicated in paragraph 2.12 of the Direction, is that the visa would not be granted in such circumstances, notwithstanding the existence of the young child …

Best Interests of the child

…

41. Ms HUANG and Mr ZHANG have an infant child, now three months old. Mr ZHANG returned to China for about one month and they registered the child as an Australian citizen by descent. Mr ZHANG then returned to Australia.

…

43. … In the case of Ms HUANG’s and Mr Zhang’s infant, the child has never lived in Australia and would likely adapt and thrive in either the Australian or Chinese environment.

…

48. … while I agree that the infant child’s better interests might be served by being able to live in Australia with both parents, the child’s age and the parents’ circumstances combined with the rapidly improving conditions in China mean that the child’s interest would not be overly compromised by living and being raised in China until such time as he can make his own choices. As indicated in the Su case above, raising the child in China can actually have some advantages and certainly no insurmountable difficulties. In any event, I consider that the other primary considerations above outweigh the minimal impact on the infant child’s best interests by refusal of Ms HUANG’s visa. I have given significant weight to this consideration.

OTHER CONSIDERATIONS

…

53. I accept that refusal of the visa would cause significant disappointment to both Ms HUANG and Mr Zhang. However, beyond that, I find that refusal of the visa would not cause insurmountable hardship for either Ms HUANG, Mr Zhang or their infant child. I find that any disadvantage they may experience by refusal of the visa would not be significant enough to outweigh the seriousness and prolonged nature of Ms HUANG’s course of fraudulent and dishonest conduct in relation to the Australian community, of which she now seeks to become a part. I have given considerable weight to this aspect.”

Relevant legislation and ministerial direction

4. Section 501 of the Migration Act 1958 (“the Act”) relevantly provides:

“(1) 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.

…

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

…

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

(i)the person’s past and present criminal conduct;

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

the person is not of good character; or

…

Otherwise the person passes the character test.”

5.        In Re Woo and Minster for Immigration and Multicultural Affairs [2006] AATA 271 it was stated at paragraphs 11 to 13 that:

“11. If the Tribunal finds that an applicant does not pass the character test the discretion in section 501(1) of the Act is enlivened. In exercising the discretion Ministerial Direction 21 (“the Direction”) must be followed and applied.

12.  In the preamble to the Direction it is stated:

“… In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it…”

13.  Provisions of the Direction that are relevant to this application are:

“1.9     In considering whether a non-citizen is not of good character against sub-paragraph 501(6)(c)(ii), decision makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

(a)       Whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights.  This could include, but need not be limited to:

…

·     Involvement in activities such as… breaches of immigration law; or

…

(b)       Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement.

…

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.

…

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).

...

2.6      It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

…

(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

...

2.12     The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person.  Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.  Decision makers should have due regard to the Government’s view in this respect.””

Character

6.        It is conceded on behalf of the Applicant, Mr Zhang, that Ms Huang does not satisfy the character test. Her potentially criminal and generally unacceptable conduct as detailed above, and later in these reasons, has been sufficient to demonstrate that she is not a person of good repute or good character.  Her adverse conduct extended over a relatively long period.  It was deliberate, intentional and motivated by self interest.

7.        It is true, as was submitted on behalf of the Applicant, that any acts of a visa applicant after reprehensible conduct may be indications favourable to her.  Good conduct as well as bad conduct is to be taken into consideration in making a relevant assessment.

8. It is noted in the present application, however, that apart from her completing the subject application and living in China with her son in the home of her parents-in-law, there is not any evidence one way or the other as to her recent conduct; that is, her conduct since leaving Australia. An assumption of good conduct is no more open than one of bad conduct. There is not any evidence to say that she has potentially changed her non-conformist inclinations. It is relevant in this context to note that Ms Huang did not place before the Administrative Appeals Tribunal (“the Tribunal”) any written or oral testimony. The material contained in the documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), marked T1 to T27, and the evidence of Mr Zhang comprised all that was available to assist the Tribunal in making an assessment of the character of Ms Huang. It is true that in the T Documents are testamentary statements supporting the original application. The subjective opinions relate, however, to assessments of Ms Huang during the time that she was an illegal non-resident.

9.        The Tribunal is satisfied that the concession as to character made on behalf of the Applicant is appropriate and justified in the circumstances of this application.

Factual Situation and the Findings of Fact

10.      Mr Zhang was born in Shanghai in the People’s Republic of China on 21 February 1967, and first entered Australia on 28 December 1989 as the holder of a student visa.  He became a Permanent Resident in about 1998.  He was the recipient of the concession granted by the Australian Government to Chinese students after the 1989 massacre in Tiananmen Square.

11.      Mr Zhang has, since 1989, lived continuously in Australia, having become a citizen on 5 February 2003.  Since the year 2000, he has returned as a visitor to China on six occasions.  He has been continuously employed in Australia, at first with QANTAS Catering for two and a half years, and since that time as a chef and shop assistant.  He is the owner, subject to a mortgage, of a home-unit in Campsie, where he resides.

12.      Mr Zhang was first married to Hong Ling Dai on 7 April 2001, obtaining a divorce from her on 8 September 2003.  He had, in 2001, been sponsoring her for permanent residence in Australia.  This sponsorship he withdrew, at or about the time of the divorce.  Mr Zhang and Ms Huang began living together in Campsie at a time when Mr Zhang was still married to his first wife.

13.      Mr Zhang gave evidence to the effect that, like Ms Huang, his first wife did not, at the time they first met or at the time of their marriage, have a visa enabling her to reside in Australia, and was an illegal immigrant.

14.      Mr Zhang says that the divorce from his first wife was consequential upon his parents not approving of the marriage and his then wife being nine years older than himself.

15.      Ms Huang’s parents had migrated from Korea to Northern China. She was born in China on 22 November 1970, and it was in North China that she obtained her education.

16.      Mr Zhang first met his present wife, Ms Huang, in Sydney in October 2002.  As already indicated she had entered Australia in January 2001 under a false name, using a false date of birth and with a false passport.  Thereafter she had applied for a student visa using the false information and false document, and subsequently remained illegally in Australia after it was refused and she exhausted all avenues of appeal.  She became an unlawful citizen shortly after she met Mr Zhang, and at a time when she had begun to co-habit with him.  They had indeed commenced residing together in November 2002.

17.      Mr Zhang was not, at the time of his second marriage, unaware of the migration status of Ms Huang.  As he put it in his evidence in chief he “was aware she had some problems with her visa”, but said he did not know the details and “did not take any steps to find out”.  Mr Zhang was aware, prior to their marriage in January 2005, that Ms Huang had used the false name Nam Rye Kim when entering Australia, and subsequently in her student visa application.  He says he found this out “when doing the paperwork for the marriage”.

18.      Mr Zhang said that he “knew everyone had problems with visas when coming to Australia” but “I did not care”.  He stated “a lot of people come to Australia using false passports”, and acknowledged in the course of his cross-examination that he knew Ms Huang, his wife-to-be, had come to Australia using a false passport.  He knew of this as early as 2003, Ms Huang having so told him about two or three months after they began living together.  As he put it in his evidence, “I knew she would have big trouble” with her visa “but I loved her”.Mr Zhang did not, nor did Ms Huang, take any steps to rectify or regularise the migration situation.  She remained working illegally in Australia.

19.      Approximately four months prior to her departure from Australia in June 2005, Ms Huang made application for a spouse visa.  This application was refused.  Since returning to China, Ms Huang has lived with Mr Zhang’s parents, and this continued after she gave birth to her son in August 2006.  In July 2005 she lodged an application for a Combined Partner (Provisional) (Class UF) and Partner (Migrant)(Class BC) visa at the Australian Consulate-General in Shanghai.  It is the refusal of this application that is the subject of these proceedings.

20.      As earlier indicated in these reasons, Mr Zhang has visited China on six occasions between 2000 and 2006; the child being conceived during the time he spent with his wife in October 2005.  They had, in fact, been attempting to have a child for some time prior to October 2005.  Mr Zhang acknowledged being aware at the time the child was conceived, and earlier, that Ms Huang may not be able to live in Australia. All he could say was that he “did not want to think like that”.

21.      Ms Huang does not, apart from her in-laws and son, have any living near relatives in China, or for that matter, except for Mr Zhang, in Australia.  Her mother, with whom she had lived whilst a young person, recently passed away.

The discretionary factors

22.      In light of the character finding the Tribunal must have regard to the primary and other considerations identified in Direction – Visa Refusal and Cancellation under Section 501 – No. 21 (“the Direction”), and outlined above, in determining whether the discretion to refuse the visa should be exercised.  Mr Levingston, appearing on behalf of Mr Zhang, submitted that the welfare of the child and the hardship to Mr Zhang were paramount considerations.  He submitted “little weight” should be given to other considerations such as Ms Huang’s conduct, which though conceded to be serious was “not of the worst type” and in light of the other considerations did not warrant the visa being refused.

23.      The Tribunal does not accept this submission.

24.      It is said on her behalf that the course of conduct engaged in by Ms Huang was one in furtherance “of the original intention to enter Australia in possession of a passport which was not issued to her”.That is, her conduct was of a singular nature, directed to the one end of obtaining employment and earning money. She was, it was said, thus not engaging in many disparate breaches of section 234 of the Act but a continuum of the one. Her general conduct could then be constrained and not be regarded as heinous as might otherwise be the case. I do not find this to be so. Ms Huang perpetrated unacceptable conduct over a period of time with full awareness of the fact that she was relying on false documentation, the provision of false information and engaging in illegal and improper activities in remaining in Australia and working without permission.

25.      From 10 January 2001 to 9 May 2005 Ms Huang obtained the benefit of her falsehoods overtly maintaining the same through her student visa application, subsequent appeal and ministerial request, and after January 2003 wrongly remaining in Australia when her application for a visa had been refused.  She was, or should have been aware, of the latter.  Her character is laid “bare” by her conduct (Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195). Apart from her leaving Australia, and she had no option in this regard, bearing a child and living with her parents-in-law, there is not any evidence of her recent general conduct. As has been earlier mentioned, she failed, without any explanation other than Mr Levingston referring to it as a “strategic decision”, to give any evidence in support of the application.

26.      Ms Huang, in light of her relationship, is in effect applying for a permanent visa.  Her character and conduct is to be looked at in this light.  Is she, it may be asked, a person who should be admitted into Australia, allowed to remain here, and have all the benefits of residency?

27. The Act is intended to regulate, in the national interest, the coming into and remaining in Australia of non-citizens. Citizens are to be protected from those who have engaged in, and may well in the future engage in, unacceptable conduct.

28. It was submitted on behalf of the Applicant that the emphasis in the Direction is towards conduct that is deemed to be “reprehensible and abhorrent” with “an eye on protecting the community in the national interest”. In the context of the Act and the Direction, the general conduct of Ms Huang was “reprehensible and abhorrent” and may well, if the opportunity was afforded to her, be repeated. After all, she was about 30 years of age when she used the false passport to enter Australia and thereafter used it to her advantage.

29.      It is true that in the context of “protection of the Australian community”, the Direction refers to the decision maker, the Tribunal, taking “reasonable steps” to ensure such protection.  One such step is to refuse, where warranted, a visa.  The instances of conduct identified in the Direction as being serious include migration misconduct.  Ms Huang engaged in migration misconduct.  Where it might impact upon the welfare of the Australian community, the community is, so far as reasonably able, to be protected from it.

30. It was submitted on behalf of Ms Huang that a comparison between the relative seriousness of the use of illicit drugs and migration misconduct highlighted the lesser seriousness of the latter. I do not agree. Conduct of the nature of that engaged in by Ms Huang can be equally, if not more prejudicial, to the community than drug use. It is of course a matter of degree. The misconduct of Ms Huang was very serious. Whilst the conduct itself is important, it is also the consequences or possible consequences of the conduct that is to be considered. To allow Ms Huang to enter Australia in light of her adverse conduct, would negate its seriousness. It would allow a person to breach the Act in a reprehensible manner, over a period of time, and still be allowed to enter the country. It may well allow and encourage others to do the same, to the detriment of the migration system put in place for the protection and betterment of the lawful residents and citizens of Australia.

31. As has been said, Ms Huang was approximately 30 years of age when she obtained and used the false passport. Her conduct was in breach of section 234 of the Act, and continued for a relatively long period. She knew, or should have known, that engaging in employment was not permitted. Whilst it is true no convictions have been recorded against her, she has acted contrary to the provisions of Australian legislation and in the absence of any evidence from her, it cannot be said that, when the opportunity and relevant circumstances again arise, she would not behave as was her habit in the past.

32.      The Tribunal is satisfied that it would be reasonable, and it would be proportionate, to refuse to grant a visa in the subject circumstances in aid of deterring others from engaging in like-minded conduct.  Mr Zhang gave evidence of “everyone having a problem with visas when coming to Australia” and a “lot of people coming to Australia on false passports”.  Visa regulation and the minimisation of the use of false passports will be assisted if those who avail themselves, or sought to avail themselves of such stratagem, do not succeed in their endeavours.  If a visa be granted, then the people intent on using improper and unlawful means to enter Australia will be encouraged to do so.  This cannot be in aid of protecting the community.

33.      The community expects non-citizens and citizens alike to obey the law.  A righteous community would expect a prospective visa holder to proceed to apply for such a visa in accord with the law, and not to engage nefarious means to sidestep it to negate its intent.  This is what Ms Huang sought to do.  There were not any particular and specific circumstances, as discussed on behalf of the Applicant, that would justify or warrant behaving as she did.  There is not any justifiable excuse for her conduct.

34.      To say that Ms Huang is separated from her husband “not out of choice but by dint of personal circumstances” is to belie the actual situation.  She was the perpetrator of the activities that resulted in her present position.  She chose to enter Australia by use of false documentation.  She stayed illegally.  She chose to live with, and marry Mr Zhang, well knowing her migration situation.  She chose to become pregnant, well knowing that she may not be able to return to Australia.  The child’s father also knew of this situation.  They were each the author of the circumstances in which they presently find themselves.

35.      Whilst the Tribunal is not unsympathetic to the position of Mr Zhang and Ms Huang it can’t be said that the community would expect a visa to be granted to Ms Huang, even when all of the other relevant considerations are made known.

36.      One of the other considerations, and a primary consideration, is the best interests of the child born on 1 August 2006 and an Australian citizen by descent.  The child is residing in China with his mother and paternal grandparents.  He is separated from his father.  It is true that the separation of the parents cannot be said to be in the best interests of the child.  There is no reason to believe, however, and no evidence to support a finding that, the child will be affected adversely in an education-sense, health-wise or emotionally, other than by the absence day to day of his father.

37.      Ms Zhang says that after 18 years in Australia, he cannot return to live in China.  He says he “loves” Australia.  He has employment in this country and is the owner of real estate.  If the application for a wife visa is not successful, he said he would remain living in Australia.  Ms Huang and the child would continue living with his parents in China.  It is to be noted that Mr Zhang has returned to China on no less than six occasions since 2000, and has not experienced any difficulty in travelling back to, or leaving that country.

38.      In my opinion the adverse conduct of Ms Huang was very serious.  It is not necessary to outline again such conduct.  It comprised falsity, use of a forged document, the provision of misleading statements and misleading information.  It extended over a period of time.  It was deliberate and made with the intent of misleading migration officials.  There is not any reason to believe on the evidence that Ms Huang would not engage in the same, or a similar form of conduct, if the circumstances so warranted.  The refusal to grant a visa may well dissuade others contemplating like conduct, and encourage potential visa holders to respect and proceed in accord with the law, and not by use of false documentation; this all in the interest of and for the protection of the Australian community.  Neither Ms Huang nor Mr Zhang has family ties in Australia.  They are all in China, including Mr Zhang’s parents and a sister.  It is apparent that the best interests of the child would be served if his parents were living together.

39.      However, having considered the seriousness of Ms Huang’s conduct, and the protection and expectations of the Australian community, the Tribunal is of the opinion, and so finds, that these considerations outweigh the consideration of the best interests of the child.

40.      Mr Zhang will experience hardship, as will Ms Huang.  This, the Tribunal understands.  But the family of each of them lives in China.  If Mr Zhang remains in Australia, he will be able to visit China as often as he is able.  He may of course, in the fullness of time, even though he now says otherwise, decide to return to China.

41.      The Tribunal is satisfied that the primary considerations of the nature of the conduct, the protection and expectations of the Australian community, outweigh the other considerations.

42.      Accordingly the decision under review is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis AM, QC, Deputy President

Signed:         …[sgd]…………………………………………..
  Associate

Date of Hearing  3 July 2007
Date of Decision             1 August 2007

Representative for the Applicant               Mr C. Levingston, Christopher

Levingston & Associates

Representative for the Respondent          Mr T. Eteuati, Clayton Utz