Rodgers and Minister for Immigration and Multicultural Affairs
[2006] AATA 723
•21 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 723
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/127
GENERAL ADMINISTRATIVE DIVISION ) Re Paul Rodgers Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date21 August 2006
PlaceSydney
Decision The decision under review is affirmed. ..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – refusal of spouse (provisional) visa on character grounds – past and present general conduct – false and misleading information – false documentation – remaining in Australia illegally – working without permission – use of false identification – visa applicant fails character test – protection and expectations of the Australian community outweigh hardship to the applicant.
Migration Act 1958 ss 501(6), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR
Re Grech and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 22
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
21 August 2006 Professor GD Walker, Deputy President Summary
1. The visa applicant, Ai Ying Shen, aged 52, was born in China and is a citizen of the People’s Republic of China. On 30 June 2003, she applied for a subclass 309 spouse (provisional) visa to reside in Australia with her spouse, the applicant Paul Rodgers.
2. The respondent, the Minister for Immigration and Multicultural Affairs, refused Ms Shen’s application on the ground that she is not a person of good character including that she provided fraudulent documents and false and misleading information to the department in entering the country and in various applications made to the Department of Immigration and Multicultural Affairs. That is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal in this case is whether Ai Ying Shen is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a spouse (provisional) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) of the Migration Act 1958 (“the Act”) not to refuse the grant of a visa.
Background
4. The applicant, Paul Rodgers, was born in Sydney, New South Wales, on 31 March 1959 and is aged 47. He is employed as a metal polisher and assistant manager by NSW Castings Pty Ltd, Metal Casters and Finishers, Marrickville. The company manufactures castings for belt buckles, key rings, lapel badges and similar items. It employs between three and six people, depending on the demand for its products. Mr Rodgers has worked for the company for 27 years and earns about $40,000 per year.
5. The visa applicant, Ms Shen, was born in Hebei Province, China, on 13 January 1954 and is aged 52. She is a citizen of the People’s Republic of China. On 20 July 1980 she married Ma Chuan Ke, the marriage ending in divorce on 31 May 2003 (T p159). There is one daughter from that marriage, Ma Ming Zhu, born 5 September 1986, aged 19 who resides in China.
6. Ms Shen arrived in Australia on 9 September 2001 on a subclass 771 transit visa (T p172). This visa had attached condition 8101 (no work) and condition 8201 (maximum three months’ study). In her application for the transit visa and Limited Purpose Visa under the New Zealand Immigration Act 1987 she may have provided false and misleading information to authorities as to the purpose of her travel.
7. On 12 September 2001 Ms Shen lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (T p238). This application was based on the false and misleading claim that she was an active member of the Falungong movement, that she had to leave China “immediately” she found out about the police interest in her, and that she feared she would be arrested, tortured, put in jail or “sent to death” if she had to return to China (T p238). Her application was refused on 30 October 2001 and affirmed by the Refugee Review Tribunal (RRT) on 6 November 2002 (T p193). In handing down its decision the RRT noted that the applicant had been put on notice that it would be unable to make a decision in her favour on the material before it, yet she failed to take up an invitation to give oral evidence or file further information in support of her claim; it was unlikely that the government would have granted her a passport on 8 September 2000 and allowed her to leave 12 months later on 9 September 2001 if she were “blacklisted” as she claimed; the ease with which she obtained her passport and left China is inconsistent with her claims that the police had visited her place of work and “have listed me as an enemy of the Chinese government and issued a warrant for my arrest” (T p203). The RRT was therefore not satisfied that the applicant was a “committed Falun Gong adherent” and that she would be in danger of arrest and persecution if she returned to China (T p203).
8. In about October 2002, Mr Rodgers met the visa applicant when he attended a massage parlour at Marrickville, New South Wales. In approximately November 2002 they commenced a relationship and in about February 2003 they commenced living together at his mother’s house (T p111).
9. On 23 January 2003, ministerial consideration under s 417 of the Migration Act 1958 was requested. This included a handwritten letter from the visa applicant in which she stated that because of her following of “Falunkong” [sic] she was fired in 1999, her daughter was refused entry to a “key high school in spite of her excellent school record only because her mother was a believer of the ‘evil religion’” and as a result was depressed and left home without notice and that “a happy family was destroyed” (T35 p187).
10. On 6 January 2003, Ms Shen’s bridging visa expired (T3 p24). She did not depart Australia at this time, but remained as an unlawful non-citizen and continued to work without permission. On 31 May 2003, Ms Shen’s divorce from her former husband became absolute (T p159). On 7 May 2003, Ms Shen was located by compliance officers of the department and detained in Villawood Immigration Detention Centre. Ministerial intervention was declined on 6 June 2003 (T p184).
11. On 7 June 2003, Mr Rodgers and Ms Shen were married in a civil ceremony at the Villawood Detention Centre, Sydney (T p163). On 12 June 2003 Ms Shen departed Australia. At the time of her departure she had a debt due to the Commonwealth of Australia for detention fees in the sum of $4,338.40.
12. On 30 June 2003, Ms Shen lodged an application for a subclass 309 spouse (provisional) visa at the Shanghai office of the Department of Immigration and Multicultural Affairs (T p26). This application included Ms Shen’s daughter, Ma Ming Zhu, as a secondary applicant. At question 68 point five “Have you or any other person included in this application, ever: left any country to avoid being removed or deported?” she ticked NO; to point six “Have you … been excluded from or asked to leave any country?” she ticked NO; and to point nine “Have you … had any outstanding debts to the Australian Government or any public authority in Australia?” she ticked NO.
13. On 1 July 2003, Ms Shen was interviewed by an immigration officer at the Australian visa office in Shanghai (T26 pp125-135). At that interview she could not remember her sponsor’s name other than Paul; when she applied for her visa to travel to New Zealand she worked for the Fu Shun Ye Ma Chemical Factory in Zhu Hai; she overstayed in Australia because she went to Market City in Sydney and saw the price of jeans and decided that it would be a good business and it was then that she decided to stay in Australia; she said that the people selling the jeans told her that she could only stay in Australia for 48 hours and that she should apply for a refugee visa alleging that she practiced Falun Gong; when she was detained she asked her migration agent Heng Tai Migration Company to write to the Minister to get an extension to her visa; and that she worked in a restaurant until October 2002 and then in a massage parlour but because of her age “I did not a good business”. She further told the interviewing officer that she met the applicant in mid October 2002 at his home at approximately 12am after she received a telephone call to go there to give him a massage and they exchanged telephone numbers; they commenced their relationship in November 2002 and commenced living together “the second day of Spring Festival in 2003 at his home” (T p129). She said that Mr Rodgers proposed marriage in March 2003 at a friend’s wedding but her migration agent, Hua Tai, did not organise it until she was in Villawood and they were married in Villawood. She said that the wedding was attended by her husband’s mother, her friend, the migration agent called Wu Jing Xin and her husband’s best friend but she could not remember his name. With regard to her employment, she informed the officer that she worked at the massage parlour until the date of her detention and that she also did cleaning work at premises in Regent Street, Redfern. She was unable to answer questions about his family or where her sponsor lived now.
14. On the same day, the immigration officer conducted a telephone interview with Mr Rodgers’s mother. With regard to how her son and Ms Shen met, she told the officer that her son had a Chinese friend at work, and this person introduced him to Ai Ying (T p132). On 2 July 2003, the officer conducted a telephone interview with Mr Rodgers, who stated that he met the visa applicant (whom he refers to as Lolla) around September/October 2002 when he had a back pain and went to a massage parlour around 5pm. He could not remember the name of the massage parlour but thought it was in Sydenham Road. He said that he proposed marriage at the beginning of May 2003 at his house. He said that he thought her job in the massage parlour was the only one she had. He was unable to answer questions about her family (T pp133-134).
15. On 12 May 2004, Mr Rodgers was interviewed in person at the Sydney office, Family Migration Unit (T21 p108). He told the interviewing officer Ms Shen has an 18 year old daughter, two sisters and no brothers but could not remember their names, he sends her $200 per month living expenses, he went to the massage parlour which was near his place of employment in 2002 but could not remember the date but it was in the afternoon, they commenced living together three or four months before their marriage, he proposed to the applicant at his sister’s house in the presence of his family not at Ms Shen’s friend’s wedding, the visa applicant had shown him her passport some five or six months after they first met and had said something about her visa but he took no notice. When asked why the visa applicant overstayed her visa in Australia, he said it was because the company that was sending her to New Zealand “folded” so she remained in Australia. He said that he communicates with the visa applicant via telephone and emails. He said he made his first trip to China in August 2003 to try to expedite the application, staying for only three days. During this trip he stayed with Ms Shen at a friend’s house. He went a second time in December 2003, renting an apartment in Zhu Hai for four weeks where he stayed with the visa applicant (T pp108-115).
16. On 23 June 2004, a migration officer at the Australian Embassy in Shanghai decided that the visa applicant and Mr Rodgers were not in a spouse relationship as defined in the Migration Act 1958 (“the Act”) and that while accepting they were lawfully married, he was not satisfied the relationship is ongoing and genuine (T20 pp101-107). In particular he noted there was limited social and familial recognition of the relationship, there was little evidence about the financial aspects of their relationship, there was inconsistency in when the parties resided together in Australia and an absence of evidence to verify whether Mr Rodgers cohabited with the visa applicant during his visits to China, there was no evidence to support their claims that they communicated by telephone, nor was there evidence that they provided companionship or emotional support to each other. On 23 June 2004, Ms Shen was notified of this decision (T20 p100). On 14 July 2004, Mr Rodgers appealed this decision to the Migration Review Tribunal (MRT).
17. On 25 February 2005, the MRT remitted the matter back to the department with a direction that the applicant meets the criteria for clauses 309.211 and 309.221 of Schedule 2 of the Act relating to spouse (provisional) visa (T p94).
18. On 17 May 2005, the Shanghai visa office requested further evidence from the visa applicant in order for her migration application to proceed (T13 p75). On 10 June 2005, Shuang (Emma) Zhang of CWH Migration Education Business Service, having lodged an appointment of migration agent notice on 12 March 2005 (T p84), filed with the department a letter from Mr Rodgers, a copy of his 2002/2003 taxation return, pay slips and statement of Ms Shen, for the department’s consideration (T42 pp68-74).
19. On 17 August 2005, Mr Rodgers paid the $4,338.00 owing to the Commonwealth for detention fees (T p57).
20. On 19 August 2005, Ms Shen was interviewed for a second time at the visa office in Shanghai (T8 p59). She told the interviewing officer that she had her own clothing business in China and also worked for a factory in Zhu Hai collecting debts. It was this factory that arranged for her to go to New Zealand to help establish a new factory in Auckland which she later heard was never established because the factory in China collapsed; she lodged her protection visa application for the purpose of remaining in Australia and starting a clothing business and that she had no problems in China; she did not know she was in Australia illegally or working unlawfully until she was detained; the first airline ticket for the applicant to visit her was paid for by her friend but she did not know who paid for the other three tickets; and she confirmed the applicant had been sending her money. In respect to working illegally, she admitted working in a vegetarian restaurant, an eating mall in Chinatown, and two other restaurants before she commenced working in the massage parlour in October 2002 where she worked until she was detained. She said that when she worked in the massage parlour she used a false identity for which she paid $3,000 around February or March 2003, but she could not remember what name was on the document (T pp59-62).
21. On 19 September 2005, an officer of the character assessment unit of the Department of Immigration and Multicultural and Indigenous Affairs advised the visa applicant, care of her migration agent, Ms Zhang, that she was considering refusing her visa on the ground that she failed the character test in s 501(6)(c)(i) of the Act and inviting her to comment (T6 p53). The department noted that she provided false and misleading information with regard to the reasons why she was travelling to New Zealand, she lodged a protection visa application based on false and misleading information, she put forward false and misleading information to the RRT and requested ministerial intervention on those same false claims, she provided false and misleading information to compliance officers when detained and was using a false identification which she paid a friend for, she remained in Australia as an unlawful non-citizen and working without permission, she failed to declare her debt to the Commonwealth or disclose that she was asked to leave Australia, and that she failed to declare that she used a false name whilst in Australia (T pp53-55).
22. By letter dated 19 October 2005, Ms Zhang of CWH Migration provided the department with statements from the applicant, the visa applicant, Mr Rodgers’s mother, a character reference from the managing director of NSW Castings Pty Ltd and a medical report from Maroubra Hearing Clinic dated 3 November 2004 as to the applicant’s severe sensorineural hearing loss binaurally (T pp43-52). In her statement Ms Shen said she made the decision to stay in Australia because her migration agent told her that she could extend her visa, she did not know that her application was for a protection visa, relying on her migration agent; she was sorry for the false claims made to the RRT and did not really know what was in the claims; she admitted that she did buy someone’s identification but her friend told her that she should do this for “safety”; she worked without permission because she wanted to contribute to her husband’s family; she did not understand that she had to pay detention fees and that is why she did not tick YES to question 68; and she did not disclose her identification name because she did not realise it would be regarded as her name. She said that she deeply regretted her wrongdoing and asked to be forgiven and given the chance to live in Australia with her husband (T pp44-48). Mr Rodgers said in his statement that his wife did some very wrong things and there are no excuses for them, but he loves his wife very much and if she is allowed to come to Australia to live will obey the laws of Australia and will not engage in any criminal conduct (T p49).
23. On 29 November 2005, having considered the submissions of Ms Shen and Mr Rodgers and the information obtained at interview, a delegate of the respondent decided to refuse the grant of a spouse (provisional) visa to Ms Shen on the ground that she did not pass the character test because of her past and present general conduct including that she repeatedly provided false and misleading information to the department and made false and misleading declarations on departmental forms in connection with her entry and stay in Australia, she made false and misleading claims in relation to a protection visa applicant and upheld those false claims through the RRT process and ministerial intervention; she falsely procured another person’s identification and did not disclose this on her spouse visa application; she did not disclose that she was asked to leave Australia and had a debt owing to the Commonwealth at the time of her departure; and she remained in Australia as an illegal non-citizen and worked without permission (T2 pp9-23). This decision was notified to Ms Emma Zhang, migration agent for Ms Shen, by letter dated 16 January 2006 (T p6). On 6 February 2006, Mr Rodgers lodged an application for a review of that decision by the tribunal.
24. At the hearing, the applicant was represented by Emma Zhang, migration agent, CWH Migration Education Business Service, and the respondent was represented by Kimberley Rose, solicitor, Phillips Fox lawyers. 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. Mr Rodgers gave oral evidence in person and Ms Shen gave evidence by telephone from China. A Mandarin interpreter translated for her.
Relevant Law and Policy
25. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
reasonably suspects has been or is involved in criminal conduct; or
(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; …
26. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
27. 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.
The transit visa
28. The visa applicant arrived in Australia on 9 September 2001 on a subclass 771 transit visa that permitted her to remain for three days from the date of each arrival (T p1721). She also held a New Zealand limited-purpose business visa to enable her to “Conduct business discussions with Tri-link (NZ) Limited till 25 September 01” (T p170). She was manager of the trade division of a company in China, Fu Shun Ye Ma Chemical Factory, that manufactured and distributed chemical products used in foods and health products. Her role was to promote the products produced by the group, to purchase materials and to collect outstanding moneys. The position was a senior one in the company and she was paid a “good salary”, she said at the hearing. In her letter to the department dated 21 October 2005 (T pp44-48), she wrote that she had nothing to do with obtaining her passport or visas because she was too busy at the time:
I cannot comment that if I had provided false and misleading information in my applications since I never filled the form myself or anyone ask me for information regarding the application form expect [sic] some my personal details. I was busy with the business and the company did documentation. And they got my passport and visa for me.
29. At the hearing, she repeated that she had not applied for the passport or visas herself, nor had she signed any of the applications, but said it was because she was working in Zhu Hai, whereas the company’s factory was in Fushun, in Liaoning Province.
30. The purpose of her visit was to explore business opportunities in New Zealand for the company, and in particular to investigate the possibility of investing in a factory there. Other representatives of the company had commenced the negotiations in New Zealand, but she did not know who they were. Nor could she explain why she did not travel to New Zealand direct or via Hong Kong (T p59). At the hearing she denied any knowledge of Tri-link (NZ) Limited (“Tri-link”), saying that she was only one of the applicants for visas and was unaware of the details.
31. The company’s manager and a technical person had travelled to New Zealand the week before she had. The negotiations collapsed, however, because the technical officer, who had also transited in Sydney, had remained in Australia, with the somewhat startling result that the factory in Fushun had closed. That was not the reason why Ms Shen herself had remained in Australia and had not travelled onto New Zealand or returned to China, because she did not learn of the technical officer’s desertion until a month after her arrival, when she telephoned the factory to say that she herself would be staying in Australia.
32. The reason she gave for not departing was that on the day after her arrival she had visited the city markets, where she had seen jeans for sale for $50 per pair. That surprised her, as she knew she could purchase jeans (presumably of the same quality) in China for 20 RMB per pair. She instantly decided to remain in Australia to go into the clothing business and establish a stall at the markets. At the hearing she explained that it was a decision taken “on the spur of the moment”. Asked if she knew she had no right to remain in Australia, she replied that she did not think of the consequences, that the prices were attractive and she therefore wanted to stay.
33. She thereupon went to consult a migration agent whose name she had found in a Chinese newspaper and promptly signed her protection visa application. The agent spoke Mandarin, but she said she did not understand the Migration Act and did not realise that she would need to return to China to seek a business visa if she wished to establish a business in Australia. The agent told her that she could apply for a business visa to remain in Australia, but it was not until her application was refused that she realised that it related to a protection visa, not a business visa.
34. Her evidence relating to the transit visa is unconvincing. She has given conflicting reasons at different times for not signing any of the applications for visas or for her passport, and she has not explained how it was possible to obtain them without even signing the necessary forms. She professed a lack of knowledge about the party with which she would be negotiating in New Zealand, even though she was a senior manager with the company. Finally, it is implausible that an executive of a chemical company, who is in transit on a business trip to prepare to establish a factory in New Zealand, would decide within 24 hours of her arrival in Sydney to abandon her mission and her employment and, on the basis of observing the price of jeans at Paddy’s Market, decide to establish a clothing stall in Sydney and proceed to locate and instruct a migration agent that very day. Further, she did not contact the company to inform them of her decision until a month later and, in any event, made no attempt to establish a clothing business at any time.
The protection visa application
35. In support of her protection visa application dated 9 September 2001 (T pp224-239), the visa applicant submitted a detailed signed statement setting out the persecution and ill-treatment she had suffered in China for being a member of the Falun Gong organisation, how she had left China to escape arrest and persecution and feared that if she were to return to China she would be imprisoned and tortured (T pp238-239). She later admitted that the grounds were a fabrication, that she had never been in Falun Gong and had applied for the protection visa only in order to stay in Australia (Exhibit A3, T pp45, 61). She denies, however, that she knew the application was based on her alleged involvement in Falun Gong at the time the application was lodged (Exhibit A2, T p45). Her interview at the Australian visa office in Shanghai on 1 July 2003 is hard to reconcile with that proposition, however:
I was told that I only could stay in Australia for 48 hours. I checked with the people selling the garments, they said I should apply for a refuge [sic] visa, alleging that I practice Fulun Gong. My refuge visa was refused on 06/01/03.
36. As she later that day signed the statement describing the injustices that she had suffered for being a Falun Gong member, it is reasonable to infer that she took their advice.
37. The visa applicant now says that she cannot recall the protection visa application form or signing it, though she does remember signing a form. She does not recall that she was given any explanation of its contents, although the agent spoke Mandarin. She does not recall whether she knew what she was signing at the time. Indeed she does not recall what she signed on 9 September and did not know it was a protection visa application until it was rejected.
38. The visa applicant repeatedly claimed that she thought she was applying for a business visa, not a protection visa. When it was pointed out that she did not mention anything about a business visa at her interview on 1 July 2003 (esp. T p126) she replied that she was given no opportunity of explaining her position, and was told to answer yes or no only.
39. When Ms Rose drew her attention to the fact that she had not answered yes or no to the relevant question (her answer is quoted above), she repeated that she did not have enough time to explain and just had to answer yes or no. After a pause, she said that her mind was confused, there were too many questions, that she did not know how to answer and she was sorry about her mistakes. She was also reluctant to answer the question whether she had ever considered herself to be a refugee, saying only that she wanted to do business and needed a business visa. She knew that if she lodged a protection visa application that proved unsuccessful, the Chinese government would not allow her to return to China, while her protection visa itself would not allow her to travel to China.
40. Asked if she was trying to transfer the blame to her migration agent, she avoided answering, saying that she did not want to argue with Ms Rose, that there was more she could say but would not do so because she had made mistakes in the past. She added that she talks to her husband every night on the telephone, but her hearing is not very good now.
The Refugee Review Tribunal (RRT) appeal
41. In her application to the RRT for review, which she signed on 19 November 2001, the visa applicant repeated her claim that she had left China to avoid arrest by the Chinese security police. Because she had left precipitately, no evidence of her actual involvement in Falun Gong could be taken out. She was able to leave China because she escaped before the security police could issue a warrant for her arrest and had been able to obtain her passport before she was blacklisted. She claimed that she had a real fear of being arrested and imprisoned if she returned to China (supp T p5).
42. Although at her interview on 19 August 2005 she conceded that the RRT application was hers, not the agent’s, she has said on other occasions that she did not know what was in the RRT application (Exhibit A2, T p45). At the hearing she went further, saying that she did not understand the purpose of the appeal. Although by now she knew, even by her own account, that her original application had been for a protection visa, she knew nothing about the nature of the appeal except that the agent told her that it would enable her to remain longer in Australia. She pursued the appeal because she had paid money to the agent, who had told her that she had only one course of action, which was to appeal. She said that she did not know what to do but proceeded, once again, “on the spur of the moment”. When it was put to her that she did have another option available, which was to return to China, she laughed. Her written statement was also evasive on this topic:
The migration agent also lodged an application to RRT. I understand that I should take responsibility for this because of the form was signed by me. But when you are in a wrong boat, it is really hard to know where to heading. I am very sorry for the situation of upholds the false and misleading claims to the Tribunal.
It is hard to believe that the visa applicant took so little interest in the nature of the appeal, especially given that it was she who paid the RRT filing fee.
43. After some prompting, she admitted that she had been invited to attend the RRT hearing and give evidence. Having discussed the situation with her agent, she decided that as she was not, and had never been, a Falun Gong member, it was not necessary for her to attend the hearing. Nevertheless, she allowed the appeal to proceed in full knowledge that it was baseless.
44. That indeed was the RRT’s conclusion in its reasons for decision dated 6 November 2002 (T pp193-203). The tribunal noted the absence of evidence to support her claim that she was a Falun Gong organiser, a status that would bring her to the attention of the Chinese authorities. Had it been the case, it was most unlikely that they would have allowed her to obtain a valid passport on 8 September 2000, much less leave the country 12 months later, had she been “blacklisted” as claimed. The ease with which the applicant obtained a passport and subsequently left the country was not consistent with her claim that before her departure, the police had visited her place of work to investigate her Falun Gong activities and had “listed me as an enemy of the Chinese government and issued a warrant for my arrest” (T p203).
The application to the Minister under s 417
45. Some three weeks after the RRT handed down its decision dismissing her appeal, the visa applicant wrote a letter to the Minister seeking his exercise of the public interest power under s 417 of the Act. In it she described herself as “a miserable refugee”, and related how she had been dismissed from her employment in 1999 for being a member of Falun Gong. For the same reason her daughter had been refused entry to high school despite her excellent academic records and as a result became depressed and left home without notice, destroying a happy family. Her husband blamed her for all the tragedy and ill-treated her as well. All the pressure drove her mad and recently she had started to take substantial amounts of daily medication to relieve “my pressure due to the refusal of my visa”.
46. In her interview on 19 August 2005 she said her agent had written a letter to the Minister and that this would give her another six months lawful residence. By that time she had met Paul Rodgers and wanted to stay longer in Australia.
47. The letter of 18 December 2002 is signed apparently by the visa applicant, but at the hearing her representative argued that as the signature was in Western script, whereas on all other documents she had signed her name in Chinese characters, it was possible that she had not signed the letter. The visa applicant herself, however, has never claimed that she did not sign it and one may infer that she did.
48. Despite her earlier claim that the agent wrote the letter on her behalf, that seems unlikely as it is handwritten on plain paper. At the hearing she said that her roommate, who was a student, wrote the letter for her, but Ms Shen did not know what was in it.
49. It seems likely that the letter was indeed written by her roommate, but that makes it all the less likely that Ms Shen was completely unaware of its contents. Even by her own account, she had known since the failure of her initial application that it related to a protection visa. She refrained from giving evidence before the RRT precisely because she had never been a member of Falun Gong and it is impossible to believe that she did not know she was writing to the Minister pursuant to an administrative form of appeal against the RRT’s decision.
The spouse visa application
50. She knew that she was unlawfully in Australia and that she had thereby made a “mistake”, but did not approach the department with a view to regularising her situation because she thought that before the bridging visa she had obtained in connection with the s 417 application expired, she would return to China with Paul Rodgers in June 2003. But, as Ms Rose pointed out to her, that was at a time when she had known Mr Rodgers only for two months and before she had moved in with him. She answered that shortly beforehand she had performed an informal background check on him by telephoning a woman who working for him and asking questions about him and why he had not yet married. She had persisted with the s 417 application because she wanted more time to know him better. Not unreasonable precautions, perhaps (apart from the false s 417 application), but somewhat at odds with her attempts to portray herself as a creature of impulse who makes far-reaching decisions “on the spur of the moment” and without considering the possible consequences of her actions.
51. In her form 47SP dated 22 June 2003 lodged in connection with the spouse visa application, the visa applicant gave untrue answers to a number of questions. In question 68 (T p34) she ticked “No” to the questions as to whether she had ever left any country to avoid being removed or deported, or had been excluded from or asked to leave any country including Australia, or had any outstanding debts to the Commonwealth or any public authority in Australia. In response to question 6, concerning whether she had ever been refused an entry permit or visa in Australia, she again incorrectly ticked “No”. She left a blank in response to a question about other names, including aliases, by which she had been known (question 14, T p27).
52. The visa applicant did not dispute that the answers were incorrect, but in her statement (Exhibit A3) sought to explain them by saying that she did not have the opportunity of obtaining professional help with the application before she left Australia. Instead she had asked the Australian husband of her friend, and her friend’s university student daughter, to help her to complete the form. Her friend’s husband read the questions to the daughter and she translated them to Ms Shen, who answered the questions in Chinese. The daughter then translated the replies in English before completing the form. “There may have been translations not clear or I had different understanding otherwise I would not to answered [sic] NO to those questions”. In her statement dated 21 October 2005, she claimed that she did not intend to withhold information and again said that the translations must have been unclear or that she misunderstood them (T pp46-47). At the hearing she said that “maybe my mind was cloudy and the circumstances were confused”. As she had purchased her own ticket to leave Australia she did not consider that she had been deported. She added that perhaps she had misunderstood or failed fully to appreciate the questions.
53. It was put to her in cross-examination that as, by her account, she had previously experienced problems resulting from having other people complete forms on her behalf, she replied that there were no migration agents in China and that her friend Danny and the student were there to help her. She believed she had answered truthfully and had no intent to deceive or conceal. In any event the government had all her records and would have been able to ascertain the truth.
54. While it is conceivable that an honest mistake could be made in such circumstances, that is a much less likely explanation when there are false answers to five different questions. Further, her reply in relation to the alias on her false driver’s license (discussed below) was so contrived that it can only be viewed as an attempt to deceive in itself. She repeated her explanation that she must not have understood the question well, but proceeded to state that “I only have one name in my life and never thought that ID’s name is my name” (Exhibit A3). That answer presupposes an additional requirement of subjective belief that would seldom be present in the case of any alias.
The false driver’s license
55. Ms Shen’s bridging visa expired shortly after the dismissal of her RRT appeal. For a period of five months she was an unlawful non-citizen, and continued to work despite no longer holding permission to do so. When she was located and detained in May 2003, she was in possession of a false New South Wales driver’s license which she had used to assume a false identity while she was working.
56. The visa applicant admitted having a false driver’s license, but explained that she used it during a period when her relationship with Paul Rodgers was strong and “I just want to do something to contribute this family and return anything I can have to the people I love. My husband and my mother-in-law love me very much and they are so kind to me. But I did not have much to return. I thought the only thing I can do was to work harder to earn more money for this family” (Exhibit A2).
57. She went on to relate how a Vietnamese woman who worked with her at the massage parlour had borrowed $2,500 for her. When she asked for repayment, the Vietnamese woman refused but said she could “help to legalise” the visa applicant by obtaining false identification for her. She told the visa applicant that it was dangerous for people like her to work and it would be better to have the identification of an Australian permanent resident. “I cannot believe that what I was thinking at that time, but I did agree to have someone’s ID for ‘safety’ in the end”. The Vietnamese woman said it would be expensive and asked her for $500 in addition to her waiving repayment of the $2,500.
58. Ms Rose asked her if she wanted a false identity in order to avoid detection. The visa applicant did not answer the question but said she had another reason that she had not previously mentioned. She had been a businesswoman in China and was afraid that Paul Rodgers’s mother would not approve of the work she was doing at the massage parlour. If she were detained, the department would check her migration status and might telephone Paul’s mother, and the visa applicant would not be able to “give a proper explanation”. Despite being asked repeatedly to explain how having a false driver’s license would prevent Paul’s mother from learning that she worked at a massage parlour, she was unable to do so. She also said that she had never told Paul that she held a false license and had not shown it to him, nor had he ever asked about it. As far as she was aware he did not know about it although she thought he could have examined the contents of her wallet.
59. The review applicant’s oral evidence contradicted that of Ms Shen on this point. Mr Rodgers said that Ms Shen had shown him the bogus license about two weeks before she was detained by the department. She said she had been told by someone that she needed to have the license and to use the name shown in it. Mr Rodgers pointed out to her that the license should be in her name and noticed that the photograph on the license was hers.
60. Although Mr Rodgers says he has a poor memory, especially for dates and places, and his evidence could be taken as supporting that, I think his relatively detailed recollection of that incident is more likely to be true than Ms Shen’s denial. While that conclusion has little bearing on any of the material facts in issue in the case, it does have relevance to the question of the visa applicant’s credibility.
61. I am satisfied that the visa applicant purchased the false driver’s license in the name of a permanent resident in an attempt to avoid detection while she was working unlawfully.
The marriage relationship
62. At the time Mr Rodgers met the visa applicant, he had never been married and was living with his mother in her house, as he still does. Having lost part of his hearing at the age of 11, he needs to wear a hearing aid in each ear. On the day of the hearing he was having difficulty with one of them, but was able to follow the proceedings quite well provided that participants spoke distinctly, even though the hearing took place in a full-size hearing room. Because of his hearing problem, he has difficulty in socialising with others, has few friends and lives a quiet life. He is well regarded at work and holds a supervisory position within the factory.
63. Mr Rodgers met the visa applicant, who was married at the time, through a massage parlour where she was working and, indeed, continued to work until she was detained. In her interview on 1 July 2003 in Shanghai, she said that she had worked in a restaurant until October 2002, until her hand was injured by hot oil and she could no longer wash dishes. Later she met someone on a train who advised her to work in the massage house. She said she did only massage work, unlike the other girls in the establishment who provided sexual services. Because of her age, she said, she did not have a very good business and worked at the parlour only two or three days a week. Why her age would have affected her success in purely massage work is not clear.
64. In her later interview, on 19 August 2005, however, she said that she had found the massage work from an advertisement in the newspaper (T p62). She cannot recall the name of the massage parlour (T p127).
65. There are certain inconsistencies and contradictions in the evidence of Mr Rodgers and the visa applicant as to how they initially met. While the point is not of great moment in itself, those incompatibilities illustrate certain wider problems with the evidence in this case.
66. Until his statement of 23 May 2006 (Exhibit A2), Mr Rodgers had maintained that he met Ms Shen when he visited a massage parlour at 47 Sydenham Road, near his place of employment, at about 5:00 pm in order to obtain some help with back pain that he was suffering as a consequence of his work. He does not recall the name of the massage parlour, but he went there three times and saw the visa applicant there on each occasion as she was the only one there who was performing actual massage services. He does not know if any other type of service was offered at the establishment (T pp111, 121, 133).
67. In his statement of 23 May 2006 and at the hearing, however, Mr Rodgers said that some time in October 2002 he had experienced back pains as a result of work. His mother was away at the time and, having located the massage parlour through the telephone book, he called and arranged for Ms Shen to come to the house. He says that he fell in love with her at first sight and, as she was also good at alleviating his back pain, he arranged to meet her again. They started going out together about a month later, in November 2002, but beyond that he said he cannot recall how the relationship developed, except that he loved her and in due course proposed marriage.
68. Ms Shen, on the other hand, in her interview on 1 July 2003 said that they first met at his house, following a telephone call to the massage parlour. She arrived at about midnight, and when she left he had given her his telephone and mobile numbers. But in her signed statement, undated but apparently originating in June or July 2003 (T p136), she wrote that “Paul came to the massage clinic for his lower back pain. I got to know Paul when I treated him. After that we met each other once a week” (T p136).
69. Her statement of 23 May 2006 (Exhibit A3) is silent on the circumstances of their first meeting, but at the hearing she reverted to the position that the manager of the massage parlour had asked her to go to Mr Rodgers’s house to assist him by back and leg massage.
70. In cross-examination Mr Rodgers sought to explain the discrepancies in his own evidence on this point by explaining that his mother was present at the interview with departmental officers and he was embarrassed to admit in front of her that he had invited someone to her house. He was not a social person and did not go out very much. That is not altogether convincing, as Mr Rodgers’s mother was under the impression that her son had met the visa applicant when a Chinese friend at work had introduced her to him (T p132). Further, he persisted in that account of the events in his telephone interview of 2 July 2003 (T p133) and in his signed statement of 4 August 2003 (T p121), when his mother would presumably not have been aware of what he was saying or writing.
71. Mr Rodgers also told the Migration Review Tribunal (MRT) that he had met Ms Shen at the massage parlour and the tribunal accepted that the couple had indeed met in that fashion (T pp96-97).
72. Mr Rodgers said that Ms Shen met his mother in January or February 2003 when all three went on a steam train trip to Newcastle organised by a travel club. His mother, however, said that he had asked her if Ms Shen could move into the house, and that was the first time she had met Ms Shen (T p111). Ms Shen states that she met Mrs Rodgers after Christmas 2002 because Mrs Rodgers had asked to meet her. In all events, the parties began living together on or about 3 February 2003 in Mr Rodgers’s mother’s house (T p97).
73. At the hearing Mr Rodgers said he could not remember when or where he had proposed marriage, but a few minutes later said that he proposed at a friend’s wedding reception in March, April or May 2003. He said he might have repeated the proposal when he went to see her in Villawood. They were married while she was still in detention in Villawood on 7 June 2003 (T p163). Oddly, however, when Ms Shen was interviewed in Shanghai a month later, she could not remember her husband’s surname (T p125), and the respondent of course now accepts that finding.
74. The respondent did not accept the genuineness of the marriage relationship, partly because of Ms Shen’s previously demonstrated lack of bona fides in migration matters (T p95). The MRT on 25 February 2005 decided, however, that the marriage was a genuine and continuing relationship (T pp94-99).
75. The visa applicant returned to China on 12 June 2003 and has remained there ever since. The following October, Mr Rodgers travelled to China to spend a long weekend with her, his fare being partly defrayed by a friend of the visa applicant’s. Since then he has travelled to China to be with her four more times, at his own expense. One visit was part of a one-week business trip, but the other three were at Christmas time and he stayed about a month on each occasion. Since then they have remained in regular contact by telephone, despite serious language barriers, and frequently he calls her every night. He says that if her visa application is not granted, he will move to China to be with her, but that would present major practical problems. His lack of Chinese language skills alone would probably prevent him from obtaining employment, and in any event he feels he is needed in Sydney to help take care of his mother.
76. Mr Rodgers said he had been unaware that Ms Shen was in Australia unlawfully until he received a telephone call to say that she had been detained by the department. She had shown him her New Zealand visa and he had been under the impression that she was in the process of obtaining an Australian one.
Problems with the evidence
77. As can be seen from the above, there are many difficulties with Ms Shen’s evidence. She offered implausible, evasive or internally inconsistent explanations for her conduct at every stage of her migration history: the applications for a Chinese passport, a New Zealand business visa and an Australian transit visa, supposedly made with no knowledge whatever of their contents and without signing any application forms, the surreal plan for negotiations to establish a factory in New Zealand and its precipitate abandonment when she decided to stay in Australia, the false protection visa, RRT appeal and s 417 application. She was evasive when challenged on her previous failure to mention her belief that she was applying for a business visa, in relation to the five separate false statements made in her spouse visa application (as to which she claimed that “maybe my mind was cloudy and the circumstances were confused”), and her obtaining, and use, of a false New South Wales driver’s license. Her evidence about Mr Rodgers’s awareness of the false license conflicted with his. She gave internally inconsistent evidence about how she came to work in the massage parlour. Her account conflicted with that of Mr Rodgers until at the hearing she changed it so that it to accorded with his. Her evidence about the nature of her duties at the massage parlour does not seem highly probable, but I make no finding about its veracity.
78. I therefore conclude that Ms Shen’s evidence is wholly unreliable. That of Mr Rodgers is more convincing, but not beyond criticism. While I accept that he has a poor memory, he does appear to ride that horse too hard at times. He admitted at the hearing giving false information to departmental officers about how he first met the visa applicant and within a space of minutes gave conflicting accounts relating to his proposal of marriage.
Application of the Law and Findings of Fact
79. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(i) and (ii), Ms Shen passes the character test having regard to her past and present general conduct. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
80. As Senior Member Ettinger has said, “There must be honesty and integrity amongst visa applicants 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).
81. 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 Ms Shen 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.
82. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
83. 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.
84. I find that Ms Shen 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. She knowingly remained unlawfully in Australia for more than five months, and failed to depart after the rejection of her protection visa and s 417 applications, and at the expiration of her bridging visa application. Since 2001 Ms Shen has made false and misleading statements in connection with her protection, bridging and spouse visa applications. She seeks to attribute the blame for those false statements to her migration agents or to friends who helped her to complete the various application forms. But as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, she was a party to the making of the false submissions and maintained their falsity through the various stages that she sought to pursue. It is not open to her to claim ignorance of the position that she was maintaining.
85. There is no evidence of recent good conduct indicating that her character may have reformed, and indeed her numerous attempts to mislead the tribunal in her evidence at the hearing strongly point to the contrary. Her expressions of regret and remorse must therefore be viewed as largely tactical. It is true, as the applicant’s representative pointed out, that there is no evidence that Ms Shen has committed any other types of offences in Australia, but her record of migration law violations is egregious in itself.
86. On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of her past and present general conduct.
87. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Ms Shen. 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.
88. 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.
89. 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.
90. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
91. 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 has made multiple false and misleading statements in connection with entry or stay in Australia at virtually every stage of her migration history since 2001. She continued to do so in her 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 her conduct must be viewed as very serious.
92. 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 she is permitted to re-enter Australia (Exhibit R2). As was pointed out above, her numerous attempts to mislead the tribunal in her oral evidence do not suggest that she is rehabilitated and her professions of regret and remorse must be treated with some reserve. Her regret appears to relate more to the consequences of her actions than to the actions themselves.
93. 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. Ms Zhang 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. 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. Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law.
Expectations of the Australian Community
94. 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.
95. 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 Convention on Civil and Political rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.1). 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).
96. 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 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
97. This is not a relevant consideration as there are no children under the age of 18 years whose interests must be considered.
98. The visa applicant, Ms Shen, has a daughter, Ma Ming Zhu, date of birth 5 September 1986, aged 19, who was also included in Ms Shen’s spouse visa application. Her interests will be considered below as an other consideration, as she is over the age of 18 years and entitled to apply for a visa in her own right.
Other considerations
99. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
100. In this case, a refusal to grant a visa to Ms Shen would not disrupt her family, all of whom, including her daughter Ming Zhu, reside in China. There is no evidence that Ms Shen’s daughter Ming Zhu has formed a bond with the applicant. The applicant’s family all live in Australia and would not be affected if the visa is not granted. A medical report from Dr S.K. Law, consultant psychiatrist, dated 18 May 2006 was filed with the tribunal. Although it was not tendered at the hearing, I think the applicant intended the tribunal to take it into account. In it Dr Law stated that he had seen the applicant on three occasions, 24 April 2006, 5 May 2006 and 8 May 2006 in relation to his depression and worry about Ms Shen’s situation and his feelings of hopelessness and helplessness that “they will never allow her to come”. Dr Law concluded:
Mr Rodgers appears to love his wife very much and misses her a lot.
My diagnosis of his current medical condition is that he is suffering from a medium form of adjustment disorder with symptomatic depressive mood triggered by the prevalent issue of the clear fear held by Mr. Rodgers of the possible failure and past failures of his wife’s immigration application – compounded with his earlier adolescent experiences.
I have counselled him on several occasions and express my concern that should this matter not be resolved soon, or his mind given rest he could slid [sic] into a much more serious state of mind, possibly Major Depressive Disorder (MDD) – which he is already showing symptoms of, due to his prolonged melancholia over the past few weeks. If this is to continue I will seriously consider prescribing an anti-depressant drug fluoxetine (Prozac), which I have already encouraged him previously to take.
I would be much obliged if the relevant immigration authority could look at all facets of his wife’s application, and would consider granting his wife a visa to come and join him as a permanent resident. This will go a long way yo ease his distress and anguish.
101. The evidence concerning the commencement and development of the relationship and eventual marriage between Ms Shen and Mr Rodgers is vague and conflicting. It is clear, however, that Mr Rodgers led a quiet and rather solitary life until he met Ms Shen in October or November 2002. He does not appear to have made any attempt to ascertain her migration status, but he recalls that she showed him her New Zealand visa (T p170) and said that she was applying for a new visa to allow her to remain in Australia. She does not appear to have mentioned, or shown Mr Rodgers, her transit visa.
102. About two weeks before she was detained and taken to Villawood, Ms Shen showed Mr Rodgers her false driver’s license, and they had a discussion about it, to the extent that their reliance on the use of phrase books to communicate permitted. Mr Rodgers told her that the license should be in her name. Some time before her detention he had also decided to marry her and had proposed at some stage. They were married while she was in Villawood. Mr Rodgers therefore knew at the time of marriage that, at the very least, Ms Shen was unlawfully in Australia and was using a false identification document.
103. It is clear that Mr Rodgers has a genuine commitment to the visa applicant and remains in almost daily contact with her by telephone, despite the severe mutual language problems.
104. The respondent accepts, as I do, that the review applicant may suffer emotional, physical and financial hardship if the application is refused. He has said that in that event he would move to China to be with her, but it is unlikely that he would be able to find employment there and he would face serious language difficulties. He has visited Mr Shen in China five times, including three stays of about a month each at Christmas time, and could presumably continue to do so. In today’s world of global labour mobility, many couples have to maintain what are termed “long-range relationships”, but that would be far from an ideal solution from Mr Rodgers’s viewpoint. That he would suffer hardship cannot be denied.
105. That is a consideration that must be given weight. In my view, however, it is outweighed by the considerations of public protection and expectations evaluated above, which make refusal of a spouse the more appropriate course.
106. In my view the decision under review should be affirmed.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 17 July 2006
Date of Decision 21 August 2006Representative for the Applicant Ms E Zhang, CWH Migration Education Business Service
Solicitor for the Respondent Ms K Rose, Phillips Fox Lawyers
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