Ren and Minister for Immigration and Citizenship

[2007] AATA 1805

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1805

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2547

GENERAL ADMINISTRATIVE DIVISION        )

Re             Yu REN

Applicant

And          Minister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date27 September 2007

PlaceSydney

DecisionThe decision under review is affirmed.

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

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – spouse visa refused – visa applicant failed character test – character test – applicant conceded that the visa applicant does not pass the test – discretion – visa applicant’s immigration misconduct viewed as very serious – contraventions of immigration laws were not isolated and occurred over a long period of time – visa applicant also attempted to mislead the tribunal in his evidence – community expectations would weigh against the grant of a visa to a person who has engaged in such consistent and sustained abuse of the migration system – best interests of the child considered – not disputed in this case that it is in the child’s best interests to live with both parents – major factor favouring the grant of a visa in this case – other considerations – compassionate claims of applicant considered – seriousness and persistence of the visa applicant’s contraventions have the result that considerations of community protection and expectations outweigh the best interests of the child and the other considerations in this case – decision under review is affirmed.

RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975 (Cth): s 37

Migration Act 1958 (Cth): ss 499(1), 499(2), 499(2A), 501(1), 501(6), 501(6)(c)(ii)

Evidence Act 1995 (Cth): s 128

CITATIONS

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

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 Barattini and Minister for Immigration Multicultural and Indigenous Affairs [2005] AATA 157

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 Zhang and Minister for Immigration and Citizenship [2007] AATA 1617

Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443

Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766

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

Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65

Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240

…

OTHER REFERENCES

Direction No 21

J Finnis, ‘Nationality, Alienage and Constitutional Principle’ (2007) 123 Law Quarterly Review 417-445

E Ryan, M Wilson, K Kain, ‘Illness after international travel’, (2002) 347(7) New England Journal of Medicine, 505-545

A Mangili, M Gendreau, ‘Transmission of infectious diseases during commercial air travel’, (2005) 365(9463) The Lancet, 989-996.

REASONS FOR DECISION

27 September 2007	Professor GD Walker, Deputy President
Summary

1.      The visa applicant Mr Dong Lin entered Australia on a bogus passport in 1995.  He lodged a false protection visa application the following month and committed a number of other breaches of migration law during his six-year unlawful stay in Australia.  In 1997 he was convicted of goods in custody and fined $400.  In 2004 he married the applicant Ms Yu Ren and a child was born to them in 2005.  Their partner visa application was refused on 30n November 2006 and the applicant applied to this tribunal on 13 December 2006 for review of that decision.

2.      At the hearing, the applicant was represented by Mr LJ Karp of counsel instructed by Mr Ray Turner, of Parish Patience Immigration Lawyers, and the respondent by Ms Tessa van Duyn, solicitor of Clayton Utz instructed by Mr Peter Berg for the respondent. 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 gave oral evidence in person and the visa applicant Mr Lin gave evidence by telephone from China. A Mandarin interpreter translated for the visa applicant and the applicant.

Issues

3.      The issues in this case are:

(a) whether the visa applicant does not pass the character test in s 501(6)(c) because of his past and present general conduct within s 501(6)(c)(ii) of the Act and, if so;

(b) whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to refuse the grant of the spouse visa, applying ministerial Direction No 21.

Relevant Law and Policy

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

…

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

…

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

(i)        …

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

the person is not of good character; …

…

5.      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 this 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.

6.      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

7.      The visa applicant Mr Dong Lin was born in Fujian province, People’s Republic of China, on 25 August 1973 and is a citizen of that country.  On 7 March 1995, he was granted a tourist (class TR) subclass 670 visa in the name of Pow Keong Thong on a Malaysian passport.

8.      Mr Lin arrived in Australia on 11 March 1995 using a false name, false visa and false Malaysian passport.  A few weeks after his arrival, on 24 April 1995, he lodged an application for a protection (subclass 866) visa in his own name (supplementary T documents (ST) p1).

9.      After that application had been rejected by a delegate of the minister on 2 February 1996 (ST pp40-41), Mr Lin applied to the Refugee Review Tribunal (RRT) for review of the delegate’s decision to refuse a protection visa on 1 March 1996 (ST p65).  The RRT dismissed that appeal on 26 February 1999 (ST pp64-75).  Consequently, Mr Lin became unlawful in Australia when the bridging visa associated with the RRT application expired on 2 April 1999.

10.     Previously, on 24 October 1997, the visa applicant had been convicted at Downing Centre Local Court of the offence of goods in personal custody reasonably suspected of being stolen.  He was fined $400 (T p165).

11.     The visa applicant met the review applicant Ms Yu Ren for the first time at a fireworks display at the Sydney Opera House on 31 December 2001.  From then on they saw each from time to time, about once a month, usually at activities held by mutual friends.  As Ms Ren was studying at that time, she was not socialising a great deal and they had only infrequent contact in person or by telephone.

12.     After December 2003, when Ms Ren had completed her studies, she asked him out and they began to see more of each other during the week and at weekends.

13.     In mid-March 2004, Ms Ren returned to China, where she remained until 28 April 2004.  While she was there, Mr Lin telephoned her on her birthday and proposed marriage.  She asked for time to consider the proposal.  After speaking to her parents, she accepted the proposal on her return to Sydney (T pp88-89).

14.     From about mid-May 2004, Mr Lin began to spend some nights at Ms Ren’s apartment at Hurstville.  They were married on 6 June 2004 at Enfield and thereafter began living together as spouses at Ms Ren’s Hurstville apartment.  In October 2004, Ms Ren learned that she was expecting her first child.

15.     Thinking it would be better to remain in Australia to help his wife until the birth, Mr Lin waited for six months before approaching the department to regularise his situation.  On 16 August 2005 he was granted a bridging visa WE (departure grounds) with a condition that he leave Australia by 23 August 2005.  The couple duly departed for China on 23 August 2005.

16.     On 25 August 2005, Mr Lin lodged an application for migration by partner (form 47SP) for a combined partner (provisional) (class UF) and partner (migrant) (class BC) visa.

17.     On 5 April 2006, the department sent the visa applicant a notice of intention to consider refusal of the visa on character grounds, to which he responded on 11 May and again on 22 May (T pp201, 220).

18.     A second notice of intention was sent on 25 October 2006 (T p249), Mr Lin responding on 15 November 2006 (T p257).  Notice of the delegate’s decision to refuse Mr Lin a visa under s 501 of the Act was sent to Mr Lin’s then agent on 5 December 2006 (T pp2-3).  Ms Ren lodged an application for review of the delegate’s decision with this tribunal on or about 20 December 2006 (T p1).

The review applicant’s evidence

19.     The review applicant Ms Yu Ren gave evidence at the hearing in writing (Exhibits A9, A10) and orally, the questions and answers being translated by a Mandarin interpreter.

20.     Ms Ren stated that she had come to Australia on 15 December 2001 as a student, completing a master’s degree in accounting at the University of Western Sydney in November 2003.  She became an Australian citizen after receiving a permanent residence visa in the skilled migration category, because of her accounting qualifications and her studies in Australia.

21.     She is in a genuine relationship with her husband the visa applicant, whom she married on 6 June 2004 in New South Wales.

22.     During her pregnancy, he gave her a great deal of support and they attended the prenatal classes at St George Hospital together.  He also accompanied her to all the prenatal checks.

23.     Their child Marissa was born on 7 June 2005.  During the four days she remained in hospital, Mr Lin visited her every day and cooked some meals for her.  After she was discharged, he spent the first month at home with her, taking care of the baby and the household.

24.     They returned to China in August 2005.  She said that while they were there the baby became very sick because the environment was bad for her.  She returned to Sydney in October 2005 and from then on has had to raise the baby on her own.  She finds it difficult and it has caused her depression.  (In her statutory declaration of 5 May 2006, however, she attributed her moods to post-partum depression from which she was still suffering (T p211).)

25.     Marissa had been separated from her father for 16 months (19 months at the time of the hearing) and she feels that the child needs his presence and that contact by telephone and internet camera is insufficient.

26.     As regards financial matters, she stated:

…

Dong sends some money to support our life in Sydney, but we need him here as we are suffering financially too.  My husband’s job in Australia is bricklayer, which is a high paid job in [sic] here.  But in China this job only can get AU$1,500 per year (Exhibit A9, para 6).

…

27.     Ms Ren is now working one day a week in an accounting practice, earning $5,000 per year.  She believes that if they were both in Australia, they could earn $40,000 per annum, which would provide a better living and education for their daughter.

28.     Her accounting education in Sydney concerned Australian accounting rules and legislation that are different from those applying in China.  Having lived in Sydney five years, she is out of touch with recent developments in China.  It would thus be impossible for her to find employment in China in her field, and very difficult in other fields because of her lack of current knowledge and work experience in that country.

29.     She states that the visa applicant has changed and that he is sorry for what he did in the past.  She knows that what he did was wrong, but points out that he helped the police to catch an offender.  She states that she and her daughter are suffering psychologically and emotionally because he is still in China, and he is suffering also.

30.     At the hearing she said that Mr Lin had told her about his migration status in about 2002 in the course of a conversation when they had come to know each other.  He had told her that he used a false passport to come to Australia and had found a Chinese migration agent who had told him to make up a story in order to obtain a protection visa.  But when the visa had been refused, he had remained in Australia illegally.

31.     Nevertheless, she had gone ahead with the relationship and the marriage because they loved each other and he treated her well.  She did not think his transgressions were serious because it was so easy for students to apply for permanent residency, as she had.  She said he is a good husband, and that as neither of them have their parents in Australia, he had supported her and taken care of her for the first month after the baby’s birth so that she could rest.

32.     When she had become pregnant, they realised they would need to apply for a spouse visa.  The lawyers told them that because of his position, he would have to apply offshore.  As he was worried about not being here when the baby was born, he did not seek the visa until after the birth.

33.     They decided he would return to China, and as his mother had told them on the telephone that his father was sick, it was decided they would all go to China.  They spent a month in his home town, Mei Hua, and 10 days in Beijing.

34.     While they were in Mei Hua, she was not well and was thus unable to feed the baby, who became sick as a result (transcript 17 July 2007 (ts) p9 – some words spoken by the interpreter are omitted from the reply as recorded in the transcript).  At first she thought it was because Marissa was unaccustomed to local conditions, but the condition continued.  As the hospital in the town was a small one, they travelled to a larger town nearby.

35.     There she was told that the pollution in Mei Hua was making the child sick, so they decided to leave.  Mei Hua has some unsealed roads and the air and water are polluted by the local textile factories.  As the town is close to the sea, it is often affected by heavy rains and typhoons, which sometimes cause power blackouts lasting days.

36.     She had not been back to China since the 2005 visit.

37.     Asked where they would live if they had to return to China, she said they would have to live in Mei Hua.  They could not move to any other city because after her husband had completed senior high school, he came to Australia and worked as a bricklayer.  In China, however, he could not obtain satisfactory employment.  If she worked her income would be insufficient to cover their expenses, as they would have to pay rent unless they lived in Mei Hua.

38.     They could not live with her family in Beijing because her parents’ property is only big enough for themselves and because her husband could not obtain employment.  As they are not registered as Beijing residents, they would be charged more for Marissa’s education.  Medical facilities would be inferior to those available in Australia, they would have to queue for three or four hours awaiting hospital treatment and would be charged more than local residents, especially for imported medication.  They would not have a family doctor but would be seeing different doctors on each visit.  She would not be able to have another child because of China’s strict one-child policy.

39.     Her parents’ apartment in Beijing is about 70 square metres in area.  It contains two bedrooms, one for her parents and another smaller one.

40.     If her husband has to remain in China, she has no idea what her future would be.  She would consider returning to China but would not allow her daughter to live in Fujian.

41.     After she returned from China, her health was not good and she was less able to feed the baby nutritiously.  She changed to bottle-feeding because the child was losing weight.

42.     At first Marissa would not allow any man to approach her, but after a while she has been able to play with the fathers of other children and sometimes calls them “daddy”.  When she sees her own father on webcam she is very excited.

43.     She is very shy with strangers, and will not play in the park with other children because she is afraid to do so and prefers to remain with her mother.

44.     If Ms Ren is sick, there is no-one to take care of the child.  That worries her.  As Marissa was her first child, she did not know how to look after her and had to obtain information on the subject.  She had suffered from post-partum depression and would sometimes lose her temper.

45.     At one stage there had been problems with Marissa’s personality, but she had now improved greatly as she was attending kindergarten two days a week.  She was very happy there and it suited her well.

46.     Marissa is not registered as a Chinese citizen because dual nationality is not allowed in China.  Ms Ren did not know what the requirements would be if she tried to register Marissa as a PRC citizen, but she can remain in China as an Australian citizen.  She would, however, be charged several times more than local children for education.  Further, normal schools would refuse to accept her, and she would have to attend an international school.

47.     She said that they had intended to stay in China for three months but had left after six weeks because the baby had fallen sick.  Reminded that she had told the psychologist (Exhibit A5, para 7.7) that they returned to Australia when Marissa’s immunisations were due, she replied that while it was possible to receive them in China, the medical situation there is “very, very bad” and she was worried by news reports about the use of unsatisfactory needles or medications.  She said she would be unable to obtain employment in China and that her husband could not work in any other city.  She later conceded, however, that with her qualifications she could obtain work, but added that if she were the only earner they would not be able to cover their living expenses.

48.     It was not possible for them to register as Beijing residents because Marissa was an Australian citizen, as she was herself.  It is necessary to marry a Beijing resident or “join a Beijing family”.  Alternatively, one could buy property or a business, but approval would still not be automatic.  The requirements were the same everywhere in China, although Beijing was more strict.  It would not be possible to obtain residency in any other city because of the requirement to be married to a local resident.

49.     Marissa could only be educated in an international school, as the ordinary schools would not accept her because of her Australian nationality.

50.     Asked why she told the psychologist (at para 8.8) that Marissa did not recognise her father when she saw him on the internet, she explained that Marissa was still young at the time (15 March 2007), but that subsequently when she had explained to her that it was her father, she would recognise him.  She had been too young then, however.  She understands some Mandarin, but as the kindergarten is all in English she also speaks to her in English (at the hearing, however, she appeared to address Marissa in Mandarin).

51.     Ms Ren tendered a second affidavit (Exhibit A10) attaching copies of telephone accounts confirming the ongoing conduct between herself and her husband, cards and envelopes relating to correspondence between them and photographs showing her husband’s town and one of her husband with a priest in China.  There were also certain untranslated documents in Chinese, described as her husband’s baptismal certificate confirming his Christian baptism on 27 January 2007, a letter from a nun confirming his connection with the church and stating that conditions in Mei Hua are not suitable for children and a letter confirming her husband’s connection with a church in China.

The visa applicant’s evidence

52.     The applicant tendered a brief 16-line statement dated 15 March 2007 by Mr Lin (Exhibit A11) stating that he is genuinely sorry for his past actions and knew that what he did was wrong.  He has reformed and will not re-offend.  He pointed out that he did help the police apprehend a wrongdoer when he was in Australia.

53.     Mr Lin said he is suffering because he cannot be with his wife and daughter in Australia.  He sees no future for Marissa in China.  When she was there she became very sick.  It depresses him that the family is suffering because of what he did and because they are not together.

54.     He said he wants to support his family.  His wife is an accountant but cannot work full-time because she must take care of Marissa on her own.  If he could return to Australia, she would have more time to work.  That would help to stop her depression.

55.     He went on to say that “I can’t even afford to look after them financially, because I don’t get paid much – I am bricklayer”.

56.     At the hearing he admitted his contraventions of migration law, which he said he regretted.  He also admitted the goods in custody conviction, explaining that a friend had asked him to hold a bag, and he had not been aware that the bag did not belong to the friend.  The police found that it contained mail belonging to another person.  He had no other convictions.

57.     He then described the occasion on which he had helped the police in November 2002.  He had met a friend named Stephen Cheung for coffee.  Later in the day he saw him with two plainclothes police officers, one of whom was Chinese.  They asked him if he knew a man named Lu from Fujian.  He told them he did know Lu, as they came from the same town in Fujian.  The police told him that they suspected Lu of being a burglar and asked Mr Lin to use his mobile phone to ask Lu to come out and meet him so that the police could arrest him.  The police promised that if the plan succeeded, they would write a letter on his behalf to the immigration department.

58.     Mr Lin agreed to participate, and Lu was arrested in his presence.  Lu is now in China and has told Mr Lin that if he finds him he will “beat him to death”.  He said the police did not write the letter, although later he said he had no idea whether they had written it or not.

59.     Asked when he had told Ms Ren that he was illegally in Australia, he said (three times) that it was in 2006, but then said it was in 2002 (ts pp24-25).  They had been chatting with friends when he had mentioned it.  He had not made her fully aware of his position until early 2005 when they went to see their migration agent to make enquires about applying for a spouse visa.  Their agent, who was also a solicitor, said there would be no problem in obtaining a spouse visa but it would take at least six months.

60.     As he was apprehensive that something might go wrong during the pregnancy, he waited until the child was born before coming forward to the department.  It was his wife who decided that they would all go to China.  They had stayed in Fujian at first for about half a month, with his mother and sister, then travelled to Beijing.

61.     His mother’s accommodation in Mei Hua consists of a two-storey house, sparsely furnished.  The ground floor holds the kitchen, dining room and bathroom, while the two bedrooms are upstairs.  The room he currently occupies is approximately square, measuring between three and four metres each side.  His mother and sister occupy the other room, which is somewhat smaller and holds two single beds.

62.     When his wife and child visited in 2005, Marissa slept near their bed in a cradle.  She was often sick, and they had to take her to a bigger town nearby for medical treatment.

63.     If they were to live together in China, he would find it difficult to obtain employment in another city because of his low educational qualifications.  He was asked three times why he could not live in another city, and said it was because he could not obtain work and also because he could not find anywhere to live.

64.     He had qualified as an insurance agent, but had lost his registration as he had not sold any insurance over a three-month period.

65.     Marissa had no future in China, he said, because of the low living standards, and because the environment, the medical care and education were all bad.

66.     In cross-examination he admitted paying for all the false documents he had used.  He had made false claims for his protection visa and for the review to the RRT.  It was his agent who prepared the protection visa application.  He simply signed the blank forms.

67.     In relation to the incident in which he had helped the police, he said the police were aware of his unlawful status – he knew that because they told him, and promised they would write to the department.  He denied that he had helped the police because of the promise they made, saying it was because they told him Lu was a bad man, a burglar.  He then said that they only made the promise after they had arrested Lu.

68.     From 1995 to 1997, he had worked in Australia as a kitchen hand, in construction, in a factory, in grocery retailing and as a cleaner.  From 1997 to 2003, he had been a kitchen hand and gyprocker, and from 2003 to 2005 a bricklayer.

69. When Ms van Duyn asked Mr Lin if he had paid income tax, the applicant’s counsel objected and asked for a certificate under s 128 of the Evidence Act 1995 (Cth).  I said that I did not think the tribunal had the power to issue certificates of that kind but that the witness could be cautioned, as he was.  After a long pause he replied that he had paid tax.  He also said that he had a tax file number.

70.     In answer to a question about why he had not sought to rectify his migration position over the years he had been working illegally, he replied that it was because he had been cheated by his migration agent.  After that he did not think about migration matters at all.

71.     The cross-examination then turned to his spouse visa application.  After his wife became pregnant and his father fell sick, and the agent-solicitor said there would be no problem with the spouse visa, all decisions had been made by his wife.  The solicitor had filled out the form.  He had signed it after reading the contents but had forgotten what was in the form.

72.     Reminded that he had ticked the “No” box in response to the question whether he had been convicted of a crime or offence in any country, he said that his previous solicitor had filled out the form.  He had just glanced at it and signed, but could not recall what had been written.

73.     The visa applicant said he is now working as a member of a packing team in a freezing factory, a position he has held since last December.  His statement of 15 March 2007 (Exhibit A11), however, Ms van Duyn pointed out, said that he was working as a bricklayer.  At first he said he could not recall the statement at all, and had no idea what was in it, and then said he could remember that he had signed it, but it was all in English and he had no idea what was written in it.  He had only been asked to sign it and did not know the contents.

74.     When that question was repeated, he replied “Let me think about it”.  After another pause, he said it was all in English, it asked for his name and citizenship but he could not recall all the questions.  After being asked twice whether he had written that he was a bricklayer, he admitted that he had.  In China he had obtained the factory job last December.  While in Australia he had worked as a bricklayer, but in China it was impossible for him to be a bricklayer.

75.     Ms van Duyn then asked him again whether he could obtain employment in other cities in China.  In a long reply, he said that because his school certificate was of a low grade, he could not obtain employment.  Even if his wife worked, her income would not be sufficient to cover all their living expenses.  The child could only attend an international school.  They would not be able to register as residents of other cities, because it is necessary either to buy property in the city or to marry a local resident.  He had applied for work in other cities but had not found any.

76.     He said that in 2005 his wife and daughter had stayed in China for a little over a month.

Other lay evidence for the applicant

77.     The applicant tendered a certificate and translation recording that Mr Lin had not committed any criminal offences in China during his residence there until 5 June 2007.

78.     A former workmate of Mr Lin in the construction industry named Jin Li signed a statement (Exhibit A2) declaring that the visa applicant when he knew him was very friendly and helpful, honest and co-operative.  He believes his relationship with Ms Ren is genuine and he thinks it important for the baby to grow up with both parents by her side.  He also thinks Ms Ren is having a struggle without her husband here to support her.

79.     Mr Li is aware that Mr Lin has breached immigration law but thinks he should be given a second chance because his wife and daughter need him.

80.     Johnny Qi Zhong Lee in his statement dated 5 April 2007 (Exhibit A3) states that he has known Mr Lin for about seven years and finds him to be friendly, warm-hearted, honest, hardworking and happy to help others.  He is a caring husband and father.

81.     He thinks that it has been hard for Ms Ren taking care of the child without the support of her husband, and Marissa has been two years without her father.  He believes that if Mr Lin is allowed back into Australia, he would be very hardworking and would take care of his family.  That would provide his daughter with a happy and healthy family to grow up with.

82.     A statement by Stephen Cheung (Exhibit A4) describes the incident in which the visa applicant helped the police to arrest a suspect by telephoning him and arranging to meet him in Campsie where he could be apprehended.

83.     He also thinks Mr Lin and his family are suffering because they cannot live together.  He thinks Mr Lin would be a good citizen if he were permitted to return.

The psychologist’s report

84.     The applicant tendered a report dated 19 March 2007 (Exhibit A5) by a registered psychologist, Mr Philip Wolfers.  The report does not set out Mr Wolfers’s qualifications, apart from the post-nominals “BSc MLE AMAPS”, and Mr Wolfers does not claim to be a clinical psychologist.  He states, however, that he is in private practice specialising in the assessment of children and adolescents/adults as well as their counselling.

85.     The report does not say how long Mr Wolfers spent with Ms Ren and Marissa, but the usual duration of such interviews is between an hour and an hour and a half.

86.     In part the report is based on direct observation, as when he notes that Ms Ren was suffering emotional distress from separation from her husband.  He also observed that while in his office, Marissa would hold items such as a cup or a toy and would not let go, interpreting that as a sign that she had developed a controlling personality and felt unsafe.  “This is very likely related to Marissa’s lack of a father, in a family where the mother’s emotional and mental attitude is not that of a woman inured to a single parent’s life” (para 8.7).

87.     He also administered three tests to measure Ms Ren’s ratings on scales of depression, hopelessness, anxiety and stress, finding her to be severely depressed, hopeless, anxious and stressed.  Apparently, Ms Ren had not told him that, according to her statutory declaration of 5 May 2006 (T pp211-213), she had suffered from post-partum depression and still had recurrences of it from time to time.

88.     The remainder of the report relates, and draws conclusions from, facts and circumstances as stated by Ms Ren herself.  It specifically notes that her claims about the educational system in China had not been verified.  And it is clear that the information she conveyed to Mr Wolfers was incomplete and untrue in material particulars.

89.     As has been noted, she apparently did not tell him that she had suffered recurring post-partum depression.

90.     She told him that her husband is a bricklayer in China who earns only about $8 per day and that she receives no support from him, whereas in her witness statement signed five days earlier she wrote that “Dong sends some money to support our life in Sydney” and he has never worked as a bricklayer in China.  She told him that they would not be able to afford to have Marissa educated in China and that she had suffered ill-health caused by pollution – claims to which I will refer in more detail later.

91.     Mr Wolfers also reported that “Yu Ren indicated that she has a great deal of difficulty in controlling Marissa in a train etc, and therefore, without Dong Lin, she rarely takes her anywhere except to a nearby park” (para 8.11).

92.     Marissa was present in the hearing room for about four hours during the proceedings.  That is probably three times as long as the psychologist observed her, at least.  She appeared to be a normal, well cared-for child with a healthy complexion, neither withdrawn nor excessively attention-seeking.  She showed no signs of feeling intimidated by being in an uninviting hearing room environment in the presence of strange adults of serious mien.

93.     While her mother was giving evidence she was in the witness box with her, and required only an occasional quiet admonition to settle her down.  At one stage, while her father was giving evidence by telephone, she began to chatter rather noisily and had to be taken outside for a time, but after her return seemed content to occupy herself quietly.  In other words, she appeared to behave quite normally for a child of that age.

94.     I claim no expertise in paediatrics or child psychology, and by making those observations I do not mean to displace or denigrate Mr Wolfers’s report.  But it does appear that Ms Ren may either have exaggerated the difficulties she was having with Marissa and her alleged personality problems, or she was describing problems that occur only intermittently and do not represent a chronic and debilitating problem that is blighting Marissa’s everyday life.

The medical report on Marissa Lin

95.     On the morning of the hearing the applicant tendered a medical report, with translation, from the Joint Hospital of Changle City, Tantou Town Clinic, dated 12 June 2007 (Exhibit A6).

96.     This was an important piece of evidence on the issue of the best interests of the child, as previously there had been no corroboration of the applicant’s claim that Marissa had suffered pollution-caused sickness while in China.

97.     Her mother’s statutory declaration of 24 October 2005 (T pp190-191) describing the visit to China in August 2005 contains no reference at all to any health problems the child might have suffered.  Similarly, the statement by Ms Ren’s parents (T p187), which also describes the visit, refers to family activities during their stay in Beijing and the visits they made to various places with the baby.  There is no reference to any sickness.

98.     While Ms Ren’s parents live in Beijing, not Mei Hua, if Marissa had been continuously sick for at least two weeks in the latter town, one might have expected her grandparents to know about it and to express some concern.

99.     The material parts of the medical report may be set out in full:

…

Page 1 of the Clinic Record:

Date:12/06/2007

Patient's Complaint:       This child patient has been suffering continuous relapses of coughs and breathing difficulties for the past two months.

Symptom:The patient child had cough and breathing difficulties about two months ago.  The symptom is worse in the morning than at night with poor appetite, vomit and abnormal bowel movements about 4 to 6 times each day accompanied by above normal quantity  The patient went to hospital for treatment for quite a few times (Details unknown).  Symptoms sometimes improved and sometimes got worse.  Had cough recently and increasing breathing difficulties with fever and phlegm.

Past Medical History:     The child patient had suffered the similar illness twice since August 2005 and the medical condition was improved after hospital treatment.

Diagnosis:temperature: 36.5°, both tonsils swollen, abnormal noise detected for both lungs, soft abdomen, Bowel noises 5 per minute.  Other medical check is normal.

Conclusion:1. Cough and asthma

2. Chronic diarrhea [sic]

Translation: 1 of 2

Advice:With a comprehensive view to the above situation, it is likely the symptoms the child patient has  suffered such as repeated cough. and breathing difficulties is the result of the change of living condition and the natural weather condition after the .patients returned to this country.  The accompanied changes of living condition, the food and the eating pattern led to the disorder of digestion and dysfunction of physical body.  The prolonged condition of this situation may lead to the adversary effect on the growth and development of the child patient.  It is recommended that the living condition of the patient be improved.

…

100.   During submissions, counsel for the applicant relied on Exhibit A6 and submitted that if Marissa was sick in Mei Hua once before, she could be again.  As he was moving on to another point, I noticed the date on the certificate and pointed it out.  It seemed anomalous, as the report began by stating that Marissa suffered from respiratory problems “for the past two months”, which could mean either April and May 2007 or May and June 2007.  But she had not been in China since at least October 2005.  In any event, she has never spent as much as two months in China, having been there for a total of six weeks at the most.

101.   Closer examination revealed other oddities.  The report states that the patient had suffered similar illness “twice since August 2005”, but for most of that time she has been in Sydney.

102.   Further, the diagnosis describes signs and symptoms as being in the present, in other words during 2007.

103. At first counsel suggested that the report might be “a rehash” of the 2005 certificate, only partly translated, that appears in the T documents (T p217), but I pointed out that the printed numbers on the two certificates do not correspond. Counsel then sought two weeks’ delay after the conclusion of the evidence and submissions for the purpose of obtaining instructions from China, which request was granted. I also suggested that the time could be used to obtain other documentary evidence, including any tax records, information on international schools and, on the respondent’s side, certain movement details and a translation of the medical certificate on Tp217. A further two weeks were allowed for any submissions on the new evidence.

104.   On 7 August 2007 the applicant tendered Exhibit A12.  Part of that Exhibit is a translation of what is said to be a report from a doctor from the same hospital as the one named in Exhibit A6.  After repeating Marissa Lin’s details, the report continues as follows:

Clinic Visit Record: (Page number unknown)

In the medical report prepared by me on 12 June 2007, I briefly described in the first paragraph the symptom that Marissa LIN had in the past two months.  This description is just a kind extraction from the clinic record of Marissa LIN in 2005.  I had not given her consultation in 2007 (until 12 June 2007).  (Translator’s Note: words in bracket are added by the translator, as this meaning is conveyed in the sentence.)

Marissa LIN’s first clinic visit record in 2005 was at the end of August.  She made  a couple of clinic visits in September.  The last visit was at the beginning of October.  For this reason, I stated in my medical report that Marissa LIN had the symptom “for the past two months.”  It was actually an extraction from her last clinic visit record in October.  I apologise for any inconvenience or misunderstanding resulted from reading of my report.

Doctor: signature

17 July 2007

105.   The applicant submitted in the covering letter that it is clear from the statement that the doctor was simply relating what was in the clinical records of Marissa’s visit to the hospital in 2005.

106.   Exhibit A12 raises further problems of its own, however:

(a)The name and position of the author of the document are not given and it is not stated whether or nor that person was also the treating doctor in 2005.

(b)Exhibit A6 purports to reproduce “Page 1 of the Clinic Record”.  In Exhibit A12, however, the report is headed “Clinic Visit Record: (Page number unknown).

(c)Exhibit A6 states unambiguously that the clinic record is dated 12 June 2007 (and contains no other date), whereas Exhibit A12 (dated 17 July 2007) says that was the date on which the extract was copied in June 2007.

(d)The translator notes that the third sentence in the first paragraph conveys the meaning that the author had not seen the patient in 2007 until 12 June 2007.  It thus implies that he or she did see Marissa on that day, which is impossible as she has been in Australia since October 2005.

107.   According to the applicant’s then solicitors, T p217 is a copy of a medical record made in August 2005.  According to the solicitors’ note, it states that Marissa suffered from diarrhoea , coughing, fever and vomiting.  The translation of that page (AST p1…) states that the date and any clinical details are illegible.  It is clear that T p217 is a cover sheet similar to those on Exhibits A6 and A12.  The actual contents of the report are not reproduced and the document was not tendered.  That is rather unfortunate, for if it was in fact created in August 2005 it would be contemporaneous documentary evidence of Marissa’s symptoms.

108.   Exhibit A12 does not resolve the ambiguities in Exhibit A6.  I am therefore not satisfied of the reliability of Exhibit A6.  It cannot be given significant weight.

Evidence of the visa applicant and the applicant generally

109.   There are a number of difficulties in the evidence for the applicant.  They include the following:

(a)In his statement of 15 March 2007 (Exhibit A11), the visa applicant claimed to be working as a bricklayer:

I can’t even afford to look after them financially, because I don’t get paid much – I am a bricklayer (para 7).

At the hearing, however, he said he had been working in a freezing plant since December 2006 (ts pp21, 35).  (Actually, the certificate from his employer shows he has been working there since November 2006 and is paid 800 RMB monthly (Exhibit A8)).  He further made it clear that he has never worked as a bricklayer in China, and that in fact it is impossible for him to do so (ts pp36-37).  He attempted to explain that inconsistency, saying at first that he had no idea what was in his statement (Exhibit A11) as his (present) lawyers had simply asked him to sign the statement and had not made him aware of its contents.  He then said he could recall something about it, such as being asked his name and citizenship (ts pp35-36).  He then added that it was impossible for him to be a bricklayer in China (ts p37).

(b)He was asked in cross-examination whether he had paid income tax while working in Australia.  At his counsel’s request he was cautioned that he could refuse to answer the question if he thought it might incriminate him.  After a suspiciously long pause, he replied that he had paid income tax.  Following the additional two weeks after the hearing allowed for the tendering of additional documentary evidence, including tax records, he was able to produce notices of assessment for the years ending 30 June 1999 and 30 June 2000 only.  It therefore appears probable that after he became an unlawful resident in 1999, he continued to work without paying income tax.

(c)Counsel submitted that the visa applicant was not seeking to rely on naivety or the conduct of migration agents, but had admitted to what he had done (ts p48).  But in fact, at the hearing and before, the visa applicant consistently blamed agents and solicitors for his migration law violations at every stage.  While his witness statement (Exhibit A11) was completely silent on the matter, in his statutory declaration or 19 August 2005 (T pp82-83) he stated that two migration agents arranged for him to sign some blank forms and told him that he could stay in Australia.  Through his then solicitors in the 11 May 2006 response to the notice to show cause (T pp201-210) he relied on his naivety, the culture of Fujian province and the activities of his then agents Priscilla International Co Ltd as explaining his false protection visa claims.  His own role is represented as confined to signing some blank forms (T p202).  Yet as the RRT noted in its decision of 26 February 1999, in his interview on 5 December 1995 he gave elaborate detail in support of the false claims (ST pp68-70).  He blamed his previous solicitor for the false answer to question 81 in the spouse visa application (T p69) as to whether he had ever been convicted of an offence although he had read the contents of the form and signed it (ts p34).  He even blamed his present solicitors for the false statement about his occupation in Exhibit A11 (ts pp35-36).

(d)Even his six-year unlawful stay and work in Australia were his agent’s fault, he claimed at the hearing.  Because he had been “cheated by the migration agent”, he ceased to think about migration matters at all (ts p33).

(e)He sought to absolve himself of responsibility for coming to Australia on a false passport and visa, saying that he was 21 years old and very naïve.  His family had arranged for him to obtain the passport and he did not know how it was obtained (T p82), but he admitted that friends and relatives paid approximately 170,000 RMB for it (T pp197, 202).  He entered Malaysia on a false PRC passport, waited a week and obtained the false Malaysian passport that he used to enter Australia.  It is impossible that he could not have known he was acting unlawfully.  He impliedly admitted that when blaming his Fujian background (T p202), that province being a notorious marketplace for bogus passports.

(f)At the hearing he said he had not told the applicant fully about his immigration status until early 2005 when they went to see a migration agent about a spouse visa (ts p25).  The applicant, however, said that he told her all about his migration status, including the false passport, the false protection visa claim and the unlawful overstay in 2002, before they were married (ts pp6-7).  She says nothing about a further disclosure at the time they sought advice about a spouse visa (ts p8).

(g)In examination-in-chief he said that the police who sought his help in locating a man from Fujian named Lu Chin promised him that if they were successful in the case, they would write a letter to the department to inform them of what he had done to help them.  It was after they made that promise that he agreed to assist them to find Lu, successfully as it turned out (ts pp23-24).  In cross-examination later in the day, however, he denied that it was because of the promise that he had assisted the police, saying that he did so because they told him that the suspect was very bad.  It was only after he agreed to assist the police that they promised to write to the department (ts pp31-32).

(h)He also changed his evidence about his knowledge of the false answer to question 81 (T p69).  At first he said he had read the contents of the application form and signed it, but when asked about question 81 he then said the form was actually filled out by his previous solicitor and he had only taken “a general glance” at it (ts p34).  Later he appeared to confirm that he knew enough English to understand the form (ts p39), although the answer is not altogether clear.

(i)A striking example of his propensity to alter his evidence related to the possibility of their living in some other part of China.  In examination-in-chief he stated three times that they could only live in his home town, where he now is, because they could not find somewhere to live in other cities and he could not find employment because of the relatively low level of his education certificate (ts p28).  After the luncheon adjournment, however, when again cross-examined on that point, he added that even if his wife could work in another city, their income would be insufficient to cover all their expenses, their daughter could receive an education only at an international school, and there was none in their town, that they could not move to another city because in order to obtain registration it was necessary to buy property there or marry a local person, and his wife’s Beijing registration had been cancelled (ts p37).  In other words, he repeated point for point the evidence that his wife had given on the subject earlier in the day (ts pp11, 13, 17, 18).  Prima facie, the obvious inference is that over the luncheon adjournment, the visa applicant had colluded with the applicant to alter his evidence so that it corresponded with hers and strengthened their case.  As that possibility was not put to him in cross-examination, however, I make no finding on the point.

(j)His explanation for his statement in Exhibit A11 that he was working as a bricklayer was evasive.  At first he said he could not remember the statement of 15 March 2007 at all, and had no idea what it contained, then said he could remember that he had signed it but it was all in English and he had no idea what was written in it.  He said he had only been asked to sign it and did not know the contents (ts pp35-36).

110.   The applicant’s evidence also contained unsatisfactory features:

(a)In her statement of facts and contentions dated 15 March 2007, she said that the visa applicant is a bricklayer who is not earning enough in China to support his wife and daughter (Exhibit A1, para 21).  In her statement of the same date, she also said that her husband can earn only $1,500 per year in China as a bricklayer (Exhibit A9, para 6).  The psychologist in his report dated 20 March 2007 noted her statement that she receives no support from her husband because a bricklayer in China earns the equivalent of only about $8 per day (Exhibit A5, para 8.2).  Yet it is clear that the visa applicant has been working at the freezing works since November 2006 (Exhibit A8).

(b)In her statutory declaration of 5 May 2006, she described how she had suffered from post-partum depression which was still recurring from time to time (T pp211-212).  From Exhibit A5, however, it does not appear that she told the psychologist about that condition.  If she had, one cannot exclude the possibility that it would have affected his assessment of her mental condition (at paras 9 and 10).

(c)At the hearing she claimed for the first time that the normal schools in China would not accept Marissa because she is not a Chinese citizen, and that she would have to attend a special international school for foreign students (ts pp11, 13).  As I had not previously heard that claim in other cases relating to China, the applicant undertook to arrange documentary corroboration of that assertion (ts p43).  The material subsequently tendered (Exhibit A12) explained what was meant by “international” schools, but provided no support for the assertion that Marissa would not be accepted by the normal public schools.

111.   Those false or unsupported statements or omissions on material matters suggest that the applicant’s evidence should be treated with some caution.  The numerous inconsistencies, implausibilities and changes of story in the visa applicant’s evidence make it impossible to treat him as a reliable witness.

The applicant’s submissions

112.   Counsel for the applicant conceded that the visa applicant did not pass the character test in s 501 but added that there was no general question about his credibility.  There had been a correction on 20 September 2005 (T p164) in relation to the answer to question 81 of the spouse visa application.  His statement concerning his occupation as a bricklayer in the March 2007 statement simply reflected his failure to understand English correctly.  He had obviously read the document.

113.   In relation to discretionary matters, first of all protection of the community, the visa applicant had committed offences of dishonesty against governments but would be unlikely to commit any similar offences here because he knows the consequences.  Being separated from his wife and child for two years was no small penalty, especially for a good husband and devoted father.

114.   The evidence of his friends is that he is a decent man and the evidence shows that he assisted police to gain the conviction of an offender, in circumstances in which he must have known there was some risk to himself.  He had come forward voluntarily and departed from Australia voluntarily, although he might have been able to live here indefinitely.  That showed some progress towards rehabilitation.

115.   Deterrence should not weigh heavily in this case because people would not be encouraged to come forward to the immigration department if they knew that they would be expelled forever.  To encourage voluntary disclosure by illegal non-citizens, there must be a chance of return, a forgiveness by the community.

116.   As regards the expectations of the Australian community, the Full Court of the Federal Court had pointed out in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 that the proposition “the Australian community expects non-citizens to obey Australian laws while in Australia” (see Direction No 21, para 2.12) is “a truism which applies equally to citizens as to non-citizens” (at para 91). Fair-minded people would not expect the father of a young child who is an Australian citizen to be forever separated from that child unless the person had committed heinous crimes.

117.   It is in the best interests of the child, now aged two, that she reside with both parents.  According to the psychologist’s report, she is suffering because of the situation and the separation from her father, including displaying symptoms of insecurity.

118.   It was not reasonable to suggest that Marissa and her mother could move to China because the evidence of both Ms Ren and Mr Lin was that they would almost certainly have to live in Fujian province in Mr Lin’s town.  As Exhibit A6 showed, when she was last there Marissa became sick and she might fall sick again if she were to return there.  The photographs attached to Exhibit A10 gave some indication of the squalor of the town where Mr Lin now lives.  As Marissa is not a Chinese citizen she would have to attend an international school.  The evidence in Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107 suggested that Marissa might be able to attend the ordinary schools subject to paying some school fees, but that would need to be clarified. The one-child policy in China would mean that she would not have the opportunity of having a sibling.

119.   Ms Ren is suffering hardship and depression because of separation from her husband and she is able to work only one day a week.  In all the circumstances the discretion should be exercised in favour of the applicant.

Application of the Law and Findings of Fact

120.   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).

…

121.   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).

122.   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).

123.   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.

124.   In this case the applicant conceded that the visa applicant does not pass the character test (ts p39).

125.   I must therefore consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of 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:

…

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.

…

126.   Paragraph 2.3 sets out the primary considerations:

…

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

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

(b)       the expectations of the Australian community; and

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

…

Paragraph 2.4 explains:

…

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

…

127.   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.

128.   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

129.   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 came to Australia on a bogus passport and visa and remained here unlawfully for six years.  He has made multiple false or misleading statements in connection with entry or stay in Australia.  He continued to do so in his evidence at the hearing.  It is clear that the visa applicant is a person who will say or sign anything in order to obtain a benefit.  In my view his conduct must be viewed as very serious.

130.   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.  His contraventions were not isolated and occurred over a long period.  It is true, as the applicant’s counsel pointed out, that he assisted police in their efforts to apprehend an offender, but it is clear that he did so in the expectation of receiving a benefit in the form of a letter of support from the police to the department.  The fact that the police told him that they knew he was unlawfully in Australia provided a further self-interested incentive to co-operate.

131.   It was also submitted that he might have been able to live in Australia indefinitely.  Instead, he came forward and departed voluntarily which, it was submitted, was evidence of rehabilitation.  That proposition assumes, however, that he would not have been detected by the department.  Voluntary departure was apparently the only avenue available to him if he wished to apply for a spouse visa.  And while refraining from further breaches of the law is laudable, it cannot be viewed as good conduct of a high order.

132.   As was pointed out above, his attempts to mislead the tribunal in his oral evidence do not suggest that he is rehabilitated and his professions of regret and remorse must be treated with some reserve.  His regret appears to relate more to the consequences of his actions than to the actions themselves.

133.   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 was submitted that deterrence should not weigh heavily in this case because to encourage voluntary disclosure by illegal non-citizens, there must be a chance of return and forgiveness by the community.  While the strong prospect of the grant of a visa might well operate as an incentive to those who have broken the law to come forward in that way, it would do nothing to deter disregard of migration law in the first place.  As Deputy President the Hon CR Wright observed in Re Barattini and Minister for Immigration Multicultural and Indigenous Affairs [2005] AATA 157 at para 38:

…

[People] who become aware of a consistent approach by decision-makers refusing to reward bad cases of deceptive and misleading misconduct with visa approval, are likely to be deterred by such knowledge.  …  If a consistent approach is manifested by the Tribunal in such cases, migration agents and solicitors will soon pass the news on to their customers or clients, and I suspect the ethnic grapevines serve a similar purpose.

…

Expectations of the Australian community

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

…

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

…

135.   Counsel for the applicant pointed out that the passage which appears 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”.

136.   While one must respectfully agree with that interpretation of the passage on its face, I think the direction is also 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:

…

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 Law Quarterly Review 417-445, 418).

…

137.   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.

138.   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 (Finnis, ibid).

…

139.   At the same time, as counsel also pointed out, 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]).

140.   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.  On the evidence in the present case, I consider that community expectations, while they would require close consideration of Marissa’s interests, weigh against the grant of a visa to the visa applicant who has engaged in such consistent and sustained abuse of the migration system.

The Best Interests of the Child

141.   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)).

142.   The Full Court in Wan (at p142) made it clear that “provided that the tribunal did not treat any other consideration as inherently more significant than the best interests… [of the child], it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children”.

143.   Commenting on that passage, Deputy President Wright in Barattini noted that:

…

The Court was at pains to point out that such a finding did not automatically entitle a person determined to be not of good character, to obtain a visa for entry to Australia. Were it otherwise persons who had failed the character test would be able to subvert the primary purpose of Section 501 of the Act by bearing or fathering a child – a rather radical ploy which has not been entirely unknown on past occasions. There is of course no room for such a suggestion in the present case (at para 34).

…

144.   The same is true in the present case.  It was not disputed that it is in the child’s best interests to live with both her parents.  That, indeed, is treated as the starting point for consideration of this factor in Direction No 21, para 2.15.  The respondent submits, however, that the family could probably be reunited in China.

145.   The applicant’s position, however, is that “Marissa cannot live in the PRC” (Exhibit A1, para 16).  She states that Marissa became sick when they visited Mr Lin’s home town and that the cause was pollution and the unsatisfactory environment.

146.   I accept that the child was sick, but whether that was because, as the applicant originally indicated at the hearing, she herself was sick and therefore unable to feed the baby nutritiously, or for some other reason, is not clear.  For the reasons given above, I do not accept the reliability of Exhibit A6.  It is common for people to suffer health disorders when they are visiting other countries.  Further, international air travel is itself an accepted independent cause of health problems (see E Ryan, M Wilson, K Kain, ‘Illness after international travel‘, (2002) 347(7) New England Journal of Medicine, 505; A Mangili, M Gendreau, ‘Transmission of infectious diseases during commercial air travel’, (2005) 365(9463) The Lancet, 989.  And Ms Van Duyn pointed out, the fact that Marissa was sick on one occasion does not mean that the same thing would happen again.

147.   The families and support networks of both parents are still in China and there would be no language or cultural barriers to the family living in that country.  As Marissa is aged only two years, there is no reason why she could not adapt quickly to life in China (see Direction No 21, para 2.16(i)-(j)).  There is no evidence to suggest that Mr Lin could not support his family in China.

148.   There is no evidence to support the applicant’s claim that as an Australian citizen Marissa could not attend the ordinary schools in China, subject to the payment of fees, nor that the standard of education offered there is in any general sense inferior to that available in Australian public school systems.  Obviously it would be easier for her to learn English in Australia than in China, but on the other hand in the commercial world of the 21^st century, a good knowledge of Mandarin is likely to be an advantage to an Australian citizen.  When she is old enough she could, of course, return to Australia at any time to complete her education if she so desired.

149.   Attached to Exhibit A10 is a copy of a letter that the applicant says is from a nun in China stating that conditions in Mei Hua are not suitable for children and that the family should be reunited.  As that document is not translated, however, I cannot give it any weight.  The attachments to Exhibit A10 also include a number of photographs of Mei Hua, which the applicant says show “the poor living conditions there”.  They do show some insalubrious parts of town, but noticeably absent are any photographs of the house where Mr Lin lives with his mother or the street in which it is located.  At all events, there is no independent evidence to corroborate the applicant’s claim that the family would be forced to live in Mei Hua and could not move to a larger city if Ms Ren or Mr Lin were to obtain employment there.

150.   I conclude that the applicant’s descriptions and predictions are exaggerated or unsupported and that the family could practicably relocate in China.  I note that in Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617, Deputy President Purvis concluded that there was no evidence to support a finding that the child in that case would be adversely affected as regards education or health by living in China (at para 36). As is well known, China’s economy is growing strongly and living conditions are improving, although not uniformly throughout the country.

151.   The test, however, is where the child's best interests lie.  Although the child could have a decent upbringing and education in China, there is little doubt she would have a more comfortable life in Australia.  In that sense her interests weigh in favour of setting aside the decision under review.

Other considerations

152.   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.

153.   The application is for a combined partner (provisional) (class UF) and partner (migrant) (class BC) visa.

154.   There is no evidence that the visa applicant has any business or other ties to the Australian community.  All Ms Ren’s family members are living in China, and the same is true of Mr Lin’s family, apart from Ms Ren and Marissa.  The visa applicant is in a genuine marriage with Ms Ren and separation from her husband has caused her, and would cause her in the future, a degree of hardship.  She is, however, able to enter and leave China and would be able to visit him there.  There is regular contact by telephone and webcam, and that could continue.

155.   Ms Ren has been aware since shortly after their relationship began that Mr Lin had entered Australia on a false passport, was staying here unlawfully, did not have permanent residence in Australia and might not be able to obtain it.  She was thus aware of his migration situation when they married in 2004.

156.   Ms Ren is a Chinese citizen and there is nothing to prevent her from relocating to that country.  She admitted that with her qualifications and education, she would be able to find employment in China (ts p16), but said that if she were the only income earner in the family her salary would be insufficient to cover all their expenses.  Mr Lin is, however, employed full-time.

157.   The Direction states that in assessing the compassionate claims of an Australian resident partner, decision-makers must consider the circumstances in which the relationship was established and whether the Australian partner knew the non-citizen was of character concern at the time of entering into or establishing the relationship (para 2.17(b)).  Deputy President McMahon gave weight to that factor in Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at para 35. Visa refusal would be distressing for Ms Ren, but the weight given to compassion for her situation must be conditioned by the fact that she entered into the relationship and subsequently marriage in full knowledge of the visa applicant’s unlawful conduct and presence.

158.   Past tribunal decisions have also drawn attention to the unwisdom of bringing a child into the world when there is no certainty that the family will be able to live together in the country of their choice: see Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766 at [50]; Re Qui and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828 at [134].

159.   There is no evidence of rehabilitation, and indeed the visa applicant’s attempts to mislead the tribunal at the hearing point in the opposite direction.  The references from his friends speak favourably of him, but display little awareness of his migration misconduct, or make no reference to it.

160.   The primary consideration of the best interests of the child is the major factor favouring the grant of a visa in this case.  But on prior occasions the tribunal has determined that the other primary factors have outweighed the best interests of the child or children involved.  O’Connor J took that view in Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65 at para 33, Deputy President Forgie in Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240 at para 129 and Deputy President Purvis in Re Zhang.  In my view the seriousness and persistence of the visa applicant’s contraventions have the result that considerations of community protection and expectations outweigh the best interests of the child and the other considerations in this case.  The decision under review is affirmed.

I certify that the 160 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   .......................[sgd].....................................................
               R. Wallace, Associate

Date/s of Hearing:  11 July 2007
Date of Decision:  27 September 2007

Solicitor for the Applicant:           Mr Ray Turner, Parish Patience Immigration Lawyers

Counsel for the Applicant:          Mr LJ Karp

Solicitor for the Respondent:      Ms Tessa van Duyn, Clayton Utz