Re Zhou and Minister for Immigration and Citizenship
[2007] AATA 1766
•17 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1766
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2555
GENERAL ADMINISTRATIVE DIVISION )
Re Jun ZHOU
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date17 September 2007
PlaceSydney
DecisionThe decision under review is set aside and the matter is remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of granting a visa to the visa applicant
.................sgd.............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa refused on character grounds – Character test - visa applicant committed breaches of immigration law – visa applicant fails character test – Discretion – found to be no significant risk of recidivism in this case – visa applicant’s candour and clear evidence indicated that he has reformed and justified a more flexible approach to the case – best interests of the child considered – other considerations – genuine marriage exists – community protection and expectations outweighed by other considerations and the best interests of the child – decision under review is set aside.
RELEVANT ACT/S:
Migration Act 1958 ss 235, 499(1), 499(2), 499(2A), 501(1), 501(6), 501(6)(c)(ii)
Administrative Appeals Tribunal Act 1975 s 37
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Sneddon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1269
Re Issa and Minister for immigration, Multicultural and Indigenous Affairs [2003] AATA 421
Re Mungcal-Fabian and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 362
Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22
Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106
Calvin’s Case (1608) 7 Co Rep 1a
Joyce v DPP [1946] AC 347
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Li and Minister for Immigration and Citizenship [2007] AATA 1718
…
OTHER REFERENCES
Direction No 21
I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994
I Brownlie, Principles of International Law, 5th edn. Oxford 1998
International Covenant on Civil and Political Rights
Johan Norberg, In defence of global liberalism, Policy, winter 2006, 43
Professor Peter Heather, Oxford, “Fall of the Roman Empire: A New History of Rome and the Barbarians”
Dr Susan H Law, University of Sydney
Professor John Finnis, Oxford, “Nationality, Alienage and Constitutional Principle”
…
REASONS FOR DECISION
17 September 2007
Professor GD Walker, Deputy President
Summary
1. This is an application by Ms Jun Zhou, the applicant seeking review of a decision made 17 November 2006 by the respondent’s delegate to refuse to grant the visa applicant, Mr Dongze Yu a subclass 309 spouse (provisional) visa. Mr Yu was refused a visa on the grounds that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (the Act).
2. Ms Zhou on 15 December 2006 made application to this tribunal to appeal that decision.
3. At the hearing, the applicant was represented by Mr Jinhui Ye, a migration agent, and the respondent by Ms Katherine Hooper, solicitor of DLA Phillips Fox. The applicant also made some submissions personally. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant, Ms Jun Zhou, gave oral evidence in person and Mr Dongze Yu the visa applicant gave evidence by telephone from China. Three other witnesses also gave evidence by telephone. A Mandarin interpreter translated for the visa applicant and for one of the other witnesses.
Issues
4. The issues in this case are:
(i)Whether the visa applicant passes the character test as stated in s 501(6)(c)(ii); and if not,
(ii)Whether the tribunal should exercise its discretion under s 501(1) so as to set aside or affirm the decision under review.
Relevant Law and Policy
5. Under s 501(1) of the Act, the Minister may refuse a visa if the applicant 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 set out in paragraph (c)(ii), as follows:
…
(c) having regard to either or both of the following:
(ii) the person’s past and present general conduct;
the person is not of good character; …
…
6. Under s 499(1) of the Act, the Minister may give written 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.
7. 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.
Basic facts
8. The visa applicant Mr Dongze Yu was born in Heilong Jiang, People’s Republic of China, on 1 July 1965 and is a citizen of that country. He was granted a subclass 456 temporary business entry visa in December 1997 and arrived in Australia a month later on 5 January 1998.
9. On 23 January 1998, he applied for a subclass 457 business long stay visa and an associated bridging visa A, which was refused on 12 February 1999. Then, on 4 March 1999, he applied for a protection visa and an associated bridging visa C. A delegate of the minister refused a protection visa on 19 March 1999, and the visa applicant’s appeal to the Refugee Review Tribunal (RRT) for review of that decision was dismissed on 27 July 1999. His bridging visa C was cancelled on 29 April 1999, but he received a bridging visa E on 10 May 1999 and was consequently released from immigration detention. He had been detained from 24 April 1999 until 10 May 1999 after having been found working in breach of his visa conditions. The bridging visa E expired on 31 August 1999 but the visa applicant remained unlawfully in Australia thereafter for approximately six years.
10. During that time, in September 2002, he met the review applicant Ms Jun Zhou on 18 September 2002 at a Homewares store in Chatswood, New South Wales, where they were both working. A relationship developed and the couple were married on 28 August 2005.
11. The applicant was born in Ji Lin, People’s Republic of China, on 6 September 1978 and was a citizen of that country until being granted Australian citizenship on 7 February 2006. She had come to Australia as an overseas student in 2001, and completed a Master’s Degree in professional accounting at the University of New South Wales in 2002.
12. The family returned to China on 27 April 2006 and on 10 May 2006, an application for a combined partner (provisional) (class UF) and partner (migrant) (class BC) visa was lodged at the Australian Consulate-General in Shanghai. A delegate of the minister rejected that application on 17 November 2006 and the applicant applied to this tribunal for review of that decision on 15 December 2006.
Applicant’s evidence
13. After outlining her educational background, Ms Zhou in her statement of 12 July 2007 (Exhibit A2) explained that she did not initially know Mr Yu’s migration status but gradually became aware of it. She took no action on her concerns, however, fearing that it would lead to the breakup up a genuine relationship to which she was already strongly committed. However, when their baby was born in February 2006, they “finally decided to come out from the dark”. Her husband greatly regretted his past violations of migration law and rather than attempt to remain unlawfully, decided to disclose his migration misdeeds to the department in full and lodge a genuine spouse application. She supported him in that resolution.
14. When he returned to China to lodge the spouse visa, she and the baby accompanied him, although it meant interrupting and possibly prejudicing her successful career as a professional accountant with a promising future in Australia. She was shocked by the refusal of his spouse visa on character grounds because she believed his general conduct had been very good and he had reformed as regards his migration misconduct. He had disclosed all of his migration history, left Australia voluntarily and genuinely regretted his previous actions.
15. Ms Zhou said that she left China in 2000 after graduating and most of her professional education was in Australian taxation and accounting methods. She had never worked in China and knew nothing of Chinese tax law, which would make it difficult for her to find a suitable position there.
16. After evaluating the situation they faced, with insufficient income to support the family, they decided that Ms Zhou should return to Australia first and find employment to support the family and so as not to sacrifice her career. It was impossible for her to bring the baby with her because as she had no family in Australia, there was no-one to take care of him when she went out to work. It had been a hard decision that had caused her much distress. She holds a permanent position with the Hanrahan accounting firm in Sydney. She is now an Australian citizen, as is the child.
17. At the hearing she said she was not sure exactly when her husband had told her about his unlawful status, but it was before the marriage and probably in late 2003. She had not given the matter a great deal of thought because she had never previously met people in that situation. Initially he had told her only that he was remaining in Australia illegally and that he had been in immigration detention. She was shocked by the revelation but did not ask for further details because she was reluctant to face the facts because of the implications for their relationship.
18. As she had permanent residency, they could have married earlier, in 2003 but she was concerned to make the best possible choice for the relationship and for her future. They married in 2005 rather than 2003 because she wanted to come to know Mr Yu better. She rejected the suggestion that the marriage had been part of a plan to obtain a visa for him, replying that if that had been his strategy he could have married someone when he first came to Australia. Before they had met, he had intended to return to China voluntarily.
19. They had not delayed coming forward to the department until after the child was born and Ms Zhou had Australian citizenship for the purpose of strengthening their case. Her sole concern was for the future of the family.
20. In China she had completed a degree in investment, which comprised two years of basic study and two years of professional training. She had earned her degree there.
21. During the year she spent in China with her husband and child from April 2006 to April 2007, they were unable to live together because a lack of accommodation. She took her son to stay at her parents’ house, while Mr Yu went to Harbin to take up employment. There was no room for him in her parents’ apartment. Harbin is about three or four hours away from Changchun, where her parents live, by train. She did not think her skills would be usable in China. She had studied investment there, but her accounting qualifications were Australian, and the standards and tax laws were different. Asked if she could obtain further professional training in China, she replied that it would mean that all her six years of tertiary education would be wasted.
22. She believes her husband is entirely reformed and greatly regrets his immigration misconduct. He had worked hard in Australia and had endeavoured to help people in need. He had only worked to survive, unlike others who turn to drugs and crime. He had even earned a gold driver’s license.
Evidence of the visa applicant
23. In his statement of 14 July 2007 (Exhibit A3) the visa applicant expressed deep regret for his unlawful stay in Australia. He realised that he should have asked his migration agent, Thomas Liu of the Eastern Migration Agency (which apparently still exists) for the details of the claims they had written in his protection visa application. He should also have insisted on a more detailed explanation about whether he was allowed to work or not, as his failure to do so had produced the embarrassment of being detained for 10 days for breach of a no-work condition. His misdeeds had required the government to spend a great deal of taxpayer’s money to deal with the application and he had taken jobs that should have been available to persons living in Australia lawfully.
24. He said he had arrived in Australia on a temporary business visa with the genuine intention of exploring business opportunities at that time. Being unfamiliar with Australian business conditions, he found that he needed more time to establish a business than his short stay visa allowed. He therefore applied for a subclass 457 visa, but in the meantime had registered a company, with the name of which he could no longer recall. It had been closed down after the refusal of the 457 visa.
25. After the failure of his 457 visa application, he approached the Eastern Migration Agency for advice. Thomas Liu introduced him to an associate, Ms Wang who was said to be a specialist in protection visa applications. She seemed very interested in aspects of his background, particularly his involvement in the student democracy movement and his writing of a letter of protest to the central government that had led to some adverse repercussions for him. She thought they placed him in a good situation for gaining a protection visa.
26. Ms Wang told him that she would write a perfect application for him, as she had studied law at the University of New South Wales and could confidently guarantee that the application would succeed, if not at the initial stage, then after an appeal to the RRT.
27. After he had paid the fee, and before he left the office, he had asked Thomas Liu if he was allowed to work. He said he needed to do so as he had lost money trying to establish a business. Liu had told him that he need not worry, and that he could work. He was in the same position as a normal citizen, except that he was not entitled to Medicare.
28. After he was detained in April 1999, he telephoned Thomas Liu who said he would arrange for an RRT review. He was then released on a bridging visa subject to a condition that he report twice weekly to the immigration office in Parramatta.
29. He went to the immigration office at Parramatta as directed. He could not remember the name of the street in which it was located, but described its whereabouts in relation to Parramatta train station. There were many people in the building but he could not find anyone who knew about the matter. On level 1 they suggested that he try level 2. A young man there told him that he knew nothing about the matter either, but when Mr Yu insisted that he was required to report there, the man passed him something like a notebook and allowed him to sign it.
30. Mr Yu again asked his agent Thomas Liu about it and was told that he did not need to report because his protection visa application was still in progress. He advised him to stay out of sight and wait until the year 2000, when Australia would become a republic and there would be a general amnesty for the occasion.
31. The visa applicant was asked about his protection claims in his RRT review application (ST pp39-40). He agreed that he had not engaged in numerous anti-revolutionary, anti-police and anti-government activities but said he had told Mrs Wang that he had been involved in the 1989 student movement. At that time virtually the whole university student body in his town had demonstrated, and he had participated in five or six rallies at the town hall and provincial government offices.
32. He had in fact seen a woman lying in the street in another city in July or August 1997, and had written a letter of protest to the central government. Two months later, the PSB police called and asked if he had sent the letter, as it had been returned by the central government to Harbin. They had warned him to be careful, but he had not been required to retract his complaint or to confess. In fact nothing of that nature had happened to him.
33. He believed, however, that on graduation he had been prejudiced as a result of those incidents by not being offered the kind of work he was seeking. He was employed in the Bureau of Industry & Commerce Harbin office doing work that he disliked, writing reports about market management. He was never promoted at that office, although he did receive a wage increase that was granted to all graduates. He resigned and went to work with the Chiyu Industry & Trading Company. He had been successful there and had risen to the position of vice manager responsible for the domestic market and human relations.
34. He explained the 14-month delay before his application for a protection visa by saying that he had not previously considered that possibility but had sought an extension of his business visa. It was the migration agency that had told him that his situation was suitable for a refugee application. He had no idea what a protection visa was. Ms Wang had told him not to worry about what was in the application because they were experts.
35. After the failure of the RRT appeal, he was unable to locate Thomas Liu and in any event had lost confidence in him because his assurance of success had proved false. He had not contacted the department because after he had been released from detention, Liu had told him that his application was still in progress and that he should wait for the expected forthcoming amnesty.
36. He had made only the one attempt to report to the Parramatta office because as no-one knew about the reporting requirement there was no point in it, and Liu had said there was no need to report because his visa was still current. It was hard for him to contact the department directly because of his lack of English, and he therefore depended on his agent, who had successfully obtained his release from detention. During the years he was illegal, he did not know that his visa had expired but guessed that it might have.
37. During that time he worked at a number of jobs, including as part-time manager of the homewares shop in Victoria Avenue, Chatswood, where he met Ms Zhou. He held a number of part-time and temporary positions, and readily acknowledged that in most instances he had not paid tax, although he did have a tax file number. He was on good terms with his neighbours and attracted no adverse attention from the police as he was complying with all other laws.
38. Nevertheless, after a time he decided he wanted to put a stop to that life as soon as possible and leave Australia voluntarily. When it was put to him that he had no alternative but to leave once he decided to seek a spouse visa, he replied that others had urged him not to return to China, saying he had no need to do so as he had been here so long and was now married. Others urged him to have more children as a way of obtaining a visa. A week before departing, he had visited an office of the department where a woman had told him that as a 457 applicant he was not required to leave Australia but could apply for a review. He had told her that he wanted to make no more mistakes and preferred to leave voluntarily.
39. He acknowledged that he had delayed the spouse visa application for some months because he knew that he would have to return to China for that purpose. But he said he had not initially thought about whether they would eventually marry, because he believed he was not good enough for her. As the relationship strengthened he considered the possibility of a visa and had approached a migration agent.
40. By the time they discovered that Ms Zhou was expecting a baby he knew that he would have to leave in order to apply for a spouse visa. As they had no relatives in Australia, it would have been hard for her to manage here on her own if he had returned to China. As she is rather small and delicate, she could not work full-time while pregnant and they feared that if she did some harm might befall the baby. As she was thus unable to take care of herself, he had decided to wait for the birth.
41. He had told Ms Zhou about his illegal status in the second half of 2003. She had asked him why he could not try to obtain permission to remain legally, but he had said that there was nothing he could do and he was waiting for the predicted amnesty. Before he had met her, he had in fact planned to leave Australia.
42. Mr Yu said that his other child, Yu Chen Yu aged 14, lives with her mother and has never been to Australia. His child by this marriage, Timon, is currently being cared for by a nanny in Changchun because his grandparents are required to live at the factory where they work. Timon had spent only two months in Australia and only speaks a few words of English. Mr Yu visits Timon from Harbin but can only do so once a week. If he were to attend school in China, he would be required, as an Australian citizen, to pay school fees.
43. Mr Yu said his current job is a temporary position in the export department of a company. He believes that his experience in this position would help his employment prospects in Australia. At all events, he needs to support his family, and if a visa is refused, his wife would have to become dependent on social security payments.
44. Where he is now living in Harbin with his parents, the accommodation is cramped and there is no space for a child. In any event, his parents are not in a position to take care of a child.
45. He concluded his oral evidence by repeating his apology and saying that while his past misconduct could not be undone, he sincerely wanted to make amends for it.
Other evidence for the applicant
46. Mrs Xue Song Gong at the hearing adopted her statement (Exhibit A4) in which she described the visa applicant’s good conduct and personal qualities. She said he is understanding and thoughtful and had gone out of his way to extend hospitality to her parents when they were lonely after their retirement. She said he is very generous and always keen to help others. When he had learned that her uncle was suffering from cancer, he visited him often and sometimes cooked some of her uncle's favourite foods to encourage him.
47. Asked at the hearing about her statement that he had not done anything against the law during his stay in Australia, she acknowledged that she knew nothing about his migration misconduct and was unaware that he had any problems of that kind until he asked her to write a statement in his support.
48. Ms Alun Xu wrote that she has known the visa applicant for about seven years and has found him to be friendly, honest and reliable (Exhibit A5). He gets along well with people of all nationalities and is enjoyable company. He is conscientious about protecting the environment, and every time they hold a picnic in a park he will not leave without cleaning up the public facilities they have used. He seeks to avoid causing any inconvenience to other people.
49. He is unfailingly honest with his friends and likes to help people in need. He is always offering help to an old couple who live next door to him, mowing the lawn, doing their shopping or carrying heavy objects for them. Again, Ms Xu knew nothing about his visa application or misconduct, but maintained that he is a good person.
50. Mr Martin Xu stated that he has known the visa applicant since January 1998 when they became flatmates at Fairfield (Exhibit A6). They shared the same townhouse for two years. Mr Xu says Dongze is a happy, generous and caring man. He had seen the couple’s relationship develop and had been a witness and the best man at their wedding. They maintain frequent contact, visiting each other on average weekly or sharing coffee, meals or outings.
51. Mr Xu acknowledged that he did not know much about the visa applicant’s migration history earlier on, but Dongze had told him more about it since. He confirmed that the visa applicant had intended to return to China before he met his wife and their baby had been born.
Observations on the evidence for the applicant
52. The evidence for the applicant was of a noticeably higher quality than is usual in such cases. Both the review applicant and the visa applicant were more candid and forthcoming in their testimony than their counterparts in most similar applications.
53. They did not attempt to evade probing questions and did not fall back on claimed inability to recall.
54. Mr Yu described material facts and circumstances with a degree of detail that lent credibility to his evidence, such as in relation to his attempt to report at the Parramatta departmental office.
55. His application for a protection visa was unmeritorious in the sense that he had no need for Australia’s protection from the Chinese authorities. On the other hand, his evidence that he thought his involvement in the 1989 student demonstrations and the consequences of his complaint to the government about his letter over the woman in the street were viewed by Ms Wang as constituting an acceptable basis for protection visa application was consistent with the other evidence and quite credible. Thus the two incidents on which the application was based were essentially true, but his fear of persecution because of this conduct was not.
56. The visa applicant’s belief, on the basis of what his agent had told him, that there would be a migration amnesty following the expected success of the republic referendum, was of course without foundation. Nevertheless, as there was a kind of precedent in the amnesty given to thousands of non-refugee Chinese students following the Tiananmen Square massacre in 1989, it is possible that he subjectively believed such an amnesty was likely until he learned of the defeat of the referendum proposal.
57. While there are a few discrepancies in the accounts he has given over the years of various events, they are not so numerous or serious that they could not be accounted for by lapse of time or difficulties of translation. There is nothing in his evidence resembling the radical contradictions, implausibilities and changes of story so often found in cases of this type.
Respondent’s submissions
58. Ms Hooper pointed out that the visa applicant clearly knew that the protection visa application that Ms Wang prepared on his behalf related to refugee status and that he had no genuine need for Australia’s protection.
59. He had come here for business purposes, not to escape persecution, and had admitted that elements of his protection claims were untrue and that he should not have applied for refugee status. In relation to the business visa itself, his estimated initial stay of 30 days was improbable in light of his objectives, and he could no longer recall the name of the company he had established.
60. He had breached the no-work condition on his bridging visa for 10 months. In Exhibit A3 he had said he was unsure whether he could work or not, but elsewhere had said he thought that he could. His explanation for his failure to report to the Parramatta office pursuant to the bridging visa condition was implausible, and it was clear that he had made only one attempt. He then disappeared into the community, knowing that he was in Australia unlawfully. The case was analogous to Re Sneddon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1269 in which an applicant who failed to comply with a work limitation condition and remained illegally had failed the character test.
61. He was also endeavouring to maintain conflicting positions in relation to his personal responsibility for his contraventions and blaming his migration agent. That in itself counted against him in the application of the character test, as could be seen from Re Issa and Minister for immigration, Multicultural and Indigenous Affairs [2003] AATA 421 at para 51.
62. There was no evidence of remorse or reform during the six years in which he remained and worked unlawfully. In Re Mungcal-Fabian and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 362, the admissions made by the visa applicant were more detailed and came earlier in time than in the present case, but Deputy President Block held that a belated confession of that kind was not evidence of good conduct (at para 53).
63. His story about waiting in the expectation of an amnesty was implausible. He knew that he was unlawfully in Australia and could not blame his agent for his substantial overstay. His voluntary departure did not constitute good conduct. To say, as Mr Ye had, that he could have instead chosen to remain here unlawfully was not valid because it presupposed that he would not have been detected and detained by compliance officers. He might not have departed at all but for the belief that the birth of his son and the naturalisation of his wife would strengthen his case for a spouse visa.
64. The character evidence given in his support should be attributed no weight because the referees appeared to have little or no knowledge of his migration misconduct. Consequently, he should be regarded as failing the character test.
65. As regards the exercise of the discretion, Issa (at para 56) made it clear that the use of the immigration system for unwarranted ends, and particularly the pursuit of false claims, should be viewed as very serious. Working without permission was an offence carrying a heavy penalty under s 235 of the Act. The pattern of migration violations until early 2006 and his seeming lack of appreciation of the seriousness of his conduct suggested a significant risk of recidivism. His expressions of regret are too recent to be given significant weight.
66. Considerations of general deterrence dictated sending a clear message to other unlawful non-citizens by affirming the delegate’s decision, Ms Hooper said, relying on Sneddon at para 46. It was also necessary specifically to discourage the use of corrupt agents to make false visa claims. The Australian community would also expect that conduct such as that engaged in by the visa applicant should not be rewarded with the grant of a visa, as was stated in Sneddon at para 48.
67. As regards the interests of the children, Yu Chen would not be affected by refusal of a visa, indeed it might be to her advantage because she would be able to maintain better contact with her father. Timon has spent only two months in Australia. The family could all live together in China and thereby maintain contact with the grandparents and their extended family. Both parents, of course, speak Mandarin. The tribunal’s decision in Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107 at paras 67-68 showed that in an appropriate case the consideration relating to the child’s best interests could be outweighed by community protection and expectations factors.
68. As regards other considerations, Ms Zhou has a degree from a Chinese university and the fact that she had returned to live there for a year showed that there was nothing to prevent her from resuming residence there. In China she could use her Australian skills, experience and connections. In any event, she could seek more professional training if required.
69. Ms Zhou had been aware of Mr Yu’s migration status from late 2003, but continued in the relationship. She knew when they married that there was no guarantee that he would be permitted to live in Australia.
Application of the Law and Findings of Fact
70. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), the visa applicant 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) 31 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).
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71. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
72. As Senior Member Ettinger has said, “There must be an honesty and integrity amongst visa applicants on which the authorities can rely so that they are treated fairly and that their claims are assessed by the same standards” (Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246, paragraph 17).
73. 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 the visa applicant 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.
74. 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) and1.9(b), 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)).
75. 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.
76. I find that the visa applicant has committed breaches of immigration law and has made false or misleading statements in connection with visa applications within the contemplation of paragraph 1.9 of Direction No 21. He applied for a protection visa while fully aware that he had no genuine need for Australia’s protection and pursued that claim through to the RRT’s decision dismissing his appeal. He worked in breach of his visa condition for 10 months, was detained for 10 days and subsequently released on a bridging visa E. After that visa expired, he remained unlawfully in Australia for approximately six years, working unlawfully all the while and for most of the time paying no income tax. During that time, though he had been led to believe there would be a government amnesty for unlawful non-citizens, he knew he was in Australia unlawfully. He attributed part of the blame to his migration agent Ms Wang. But as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, he was a party to the making of the unmeritorious claims and maintained them through the various stages that he sought to pursue. It is not open to him to claim ignorance of the position that he was maintaining.
77. There is an amount of evidence from friends and associates, but it cannot be accorded substantial weight because the referees make little or no reference to the visa applicant’s immigration offences. To the extent that they do, they evince insufficient recognition of the gravity of his past conduct in relation to the laws he broke during his lengthy stay. There is evidence of reform and rehabilitation which is discussed below, but although I think it is genuine, it is insufficient to outweigh the gravity of the applicant's migration misconduct, especially his six-year unlawful stay and unlawful work, for the purposes of the character test.
78. On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of his past and present general conduct.
79. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether to grant a visa to the visa applicant. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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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.
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80. Paragraph 2.3 sets out the primary considerations:
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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.
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Paragraph 2.4 explains:
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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.
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81. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, 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.
82. 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 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
83. The first issue to be discussed 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. In this case, the visa applicant made an unmeritorious protection claim and pursued it to its determination by the RRT. Although the incidents on which the claim was based were essentially true, he was well aware that he did not need Australia’s protection against the Chinese authorities. He remained in Australia unlawfully and worked without permission for a period of six years. In my view, his conduct must be viewed as very serious.
84. The next issue for the tribunal to consider is the risk of recidivism. The respondent submits that the visa applicant has demonstrated a willingness to disregard Australian laws, and in particular the Australian migration system, and that there is a considerable risk the visa applicant will continue to act unlawfully and dishonestly if he is permitted to re-enter Australia.
85. This case is somewhat different from the scenario that so commonly comes before the tribunal in s 501 cases. His initial entry into Australia was not through the usual means of a visitor visa obtained by false representations about the holder’s intentions, but on a short stay business visa which he sought to extend by lawful means. He had plausible business reasons for seeking more time to explore opportunities in Australia and established a company for that purpose. After the refusal of his extended business visa, he had to close it down, apparently losing a significant amount of money in the process. For the first part of his unlawful stay he believed he would be able to regularise his position through a predicted amnesty, although he remained for a period of years after it must have become apparent that his hopes were unfounded.
86. His claim that until he met his wife he had wanted to put an end to the unlawful life he was leading and planned to return voluntarily to China is corroborated, and not only by his wife. He made full disclosure of his migration violations in his spouse visa application. His evidence before this tribunal was candid, frank and detailed. In my view, there is no significant risk of recidivism in this case.
87. 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. It is sometimes sought to discount that factor, and it is true that the deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
88. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa refusal is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. Granting a visa to a person who had remained unlawfully in Australia for six years would not normally be advisable for that reason, but in the special circumstances of this case, I think it can be viewed as justifiable.
Expectations of the Australian Community
89. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
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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.
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90. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). Consistently with these principles, it has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).
91. There are historical reasons also. The record of the past, at least as far back as ancient Rome, shows that large-scale immigration, if not properly regulated, rapidly transforms into colonisation or invasion. Professor Peter Heather of Oxford writes:
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In 376 a large band of Gothic refugees arrived at the empire’s Danube frontier, asking for asylum. In a complete break with established Roman policy, they were allowed in, unsubdued. They revolted, and within two years had defeated and killed the emperor Valens – the one who had received them – along with two-thirds of his army, at the battle of Hadrianople (Heather, “Fall of the Roman Empire”, Macmillan, 2005, xi)
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92. Professor Heather is convinced that Valens’s welcoming of the Goths was the decision that sealed the fate of the empire (id., eg pp 444-445, 459, 433-435).
93. Dr Susan H Law of the University of Sydney, in an article on her university website titled “Invasions”, draws a distinction between what she calls “migration invasions” and “administrative invasions”. In the latter class of case, the invading force is limited to military and administrative personnel and takes place in a short timeframe. The classical example is the Norman invasion of England.
94. Dr Law defines a “migration invasion”, however, as being marked by “the presence of all layers of a society in the invading force”, not just the military and administrators, the slowness of the process and the almost total absorption or loss of the previous population and culture. An example of a successful migration invasion, Dr Law writes, is the Anglo-Saxon invasion of Britain.
95. That migration, thought to have been led by Hengist and Horsa, began circa 446 AD when three boatloads of German refugees landed at Ebbsfleet. As they offered to fight for the local English king Vortigern against the Picts, Vortigern welcomed them and gave them Thanet (then an island) to live on. They promptly began bringing their relatives from Germany, initiating a migration invasion that completely displaced the native British population as far as the Highland line. A more familiar example of a migration invasion, as Dr Law notes, is to be found in the history of Australia after 1788.
96. The passage in paragraph 2.12 of Direction No 21 stating that “The Australian community expects non-citizens to obey Australian laws while in Australia” was criticised by the Full Court of the Federal Court in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 at para 91. Their Honours doubted that the language was capable of affording much guidance, as that expectation “is a truism which applies equally to citizens as to non-citizens”.
97. While one may respectfully agree with that interpretation of the passage on its face, I think the direction is alluding to a long-standing principle of reciprocal obligation whereby a nation allows entry to a non-citizen who otherwise has no right to enter or remain on the territory, but only for so long as the citizen accepts and acts upon the corresponding obligation to obey the nation’s laws. Professor John Finnis of Oxford puts it this way:
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The fundamentally equal protection which our law has long accorded aliens (foreigners) within the realm is grounded on a venerable constitutional maxim of reciprocity: presence within the realm entitles foreigners to the protection of subjects and entails the obligations of subjects (J Finnis, “Nationality, Alienage and Constitutional Principle” (2007) 123 LQR 417, 418).
…
98. The principle was articulated by Lord Coke, with the Lord Chancellor and almost all England's judges, in Calvin’s Case (1608) 7 Co Rep 1a at 5a-5b, 77 ER, 377, 382-383; see also Joyce v DPP [1946] AC 347 at 366.
99. The permission given can be revoked when it is determined that the non-citizen’s presence is adverse to the public good:
…
Risks to the public good that must be accepted when posed by the potential conduct of a national (citizen) need not be accepted when posed by a foreigner, and may be obviated by the foreigner’s exclusion or expulsion (ibid.).
…
100. At the same time, while the community for economic, historical and other reasons requires that mass migration be properly regulated, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).
101. In my view, the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. This application, like all such cases, must be decided on its own facts. While the community would take a serious view of the visa applicant’s migration misconduct, especially his six-year period of unlawful stay and work without permission, I also think that the visa applicant’s candour and the clear evidence that he has reformed would be taken as justifying a somewhat more flexible approach to the case than might otherwise be considered appropriate..
The Best Interests of the Child
102. The third primary consideration is the best interests of the child. The tribunal is guided on this question by 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, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
103. The visa applicant has a 14 year-old daughter from his first marriage who lives in China.
104. In her statement of 16 February 2007 (Exhibit A1), the applicant agrees that refusal of the application would have little or no effect on the best interests of Mr Yu’s daughter from his previous marriage. Indeed, it could be in her interests, as she has never been to Australia and resides in China with her mother. There is little evidence that the visa applicant has had significant contact with the child for many years. Visa refusal would make it easier for the visa applicant to maintain contact with the child in China, which is in her best interests.
105. As regards their eight month-old son Timon from the present marriage, the applicant points out that as an Australian citizen he would not be entitled to free education and medical treatment in China.
106. There is no evidence, however, that the fees that would have to be paid for his education and for any medical treatment would be prohibitive, nor that the standard of education available in China is in any general sense inferior to that offered in Australia. The same may be true of medical treatment, at least in the coastal provinces, and there is no evidence to the contrary in this case. In another recent case, a Chinese applicant made it clear that he was not concerned about the standard of medical treatment available in China in view of the rapid progress that has been made in that respect (Re Li and Minister for Immigration and Citizenship [2007] AATA 1718)
107. Timon has spent only two months in Australia and lives in China. He is too young to have developed any social connections with Australia and all his extended family live in China.
108. The direction proceeds on the basis that a child’s best interests are served if it remains with its parents, and there is no obstacle to the family being reunited in China.
109. It may be assumed, however, that the child would have a more comfortable life in Australia and would be in a better position to learn English, a substantial consideration for an Australian citizen. To that extent, the best interests of the child favour the grant of a visa, although not strongly, especially considering that the interests of the other child do not.
Other considerations
110. 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 that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
111. There is no doubt that the applicant’s marriage is genuine. She said that as she had permanent residency, she could have married the visa applicant earlier, in 2003, but had been concerned to make the best possible choice for the relationship and her future. They married in 2005 rather than 2003 because she wanted to come to know Mr Yu better. There is no evidence that the marriage was part of a plan to obtain a visa for him, as he had intended before meeting her to return to China voluntarily. Nor is there any evidence that Timon was brought into the world for the purpose of facilitating a migration outcome.
112. While there is nothing to prevent the family from being reunited in China, the applicant says she does not want to return to live there because Timon is an Australian citizen and she wants him to grow up in this country. She also does not wish to sacrifice her career and all she has worked for through her studies. But it would seem that she could use her skills in China, even if she might need additional training in the Chinese tax system.
113. There is, however, clear evidence of reform and rehabilitation. The visa applicant’s original protection visa application, although unmeritorious, was based on fact and he could have thought subjectively that he was therefore able to make a proper application on that basis, leaving it to the respondent to decide whether or not he had made a sufficient case. His original entry on a business visa was not based on false representations and was genuinely for business purposes, at least in large part.
114. Although he remained unlawfully in Australia for six years, before he met his wife he had decided to return to China voluntarily. He realised that the amnesty he had been led to expect was not forthcoming and tired of the life of dissimulation. He made full disclosure of his immigration misconduct in the spouse visa application. At the hearing his evidence was frank and detailed, and free of prevarication, evasion or pretended inability to recall.
115. For the reasons already given I think the primary considerations of community protection and expectations are somewhat attenuated in this case and that they are outweighed by the other considerations and, to an extent, by the best interests of the child.
116. The decision under review is set aside and the matter is remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of granting a visa to the visa applicant.
I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ............................sgd.............................................
R. Wallace, AssociateDate/s of Hearing: 1 August 2007
Date of Decision: 17 September 2007Representative for the Applicant: Mr Jinhui Ye, migration agent
Solicitor for the Respondent: Ms Katherine Hooper, DLA Phillips Fox
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