Scorgie and Minister for Immigration and Citizenship
[2007] AATA 1654
•10 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1654
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2543
GENERAL ADMINISTRATIVE DIVISION )
Re Darren SCORGIE
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date10 August 2007
PlaceSydney
DecisionThe decision under review is affirmed.
...............[sgd]...............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – Character test - spouse visa application refused on character grounds – visa applicant knowingly supplied false documents in order to gain a business visa to Australia - visa applicant also lodged a protection visa relying on wholly fabricated grounds – false information given on spouse visa application – applicant sought corrupt agent who would be prepared to lodge a false application - no evidence of recent good conduct – visa applicant found not to pass the character test. Discretion – evidence did not suggest that the visa applicant is rehabilitated – question of general deterrence considered - role of migrant community networks in the operation of deterrence noted - community expects that the migration program will be administered to favour those who obey the law – community expectations would weigh against the grant of a visa to an applicant who has engaged in consistent and sustained abuse of the migration system – primary considerations of community protection and expectations outweighed the other considerations in this case.
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RELEVANT ACT/S:
Migration Act 1958 ss 499(1), 499(2), 499(2A), 501(1), 501(2), 501(6)
Direction No 21
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 Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22
Re Ly and Minister for Immigration and Multicultural Affairs [2003] AATA 435
Re Beale and Minister for immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474
Re Barattini and Minister for immigration, Multicultural and Indigenous Affairs [2005] AATA 157
Re May and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 480
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145
Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443
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REASONS FOR DECISION
10 August 2007
Professor GD Walker, Deputy President
Summary
1. The review applicant applied for a review of a decision by the respondent refusing the grant of a spouse visa to his wife (the visa applicant).
2. At the hearing, the applicant was represented by Mr Julian Gormly of counsel, and the respondent by Ms Tessa Van Duyn, solicitor of Clayton Utz. 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 gave evidence by telephone from China. A Mandarin interpreter translated for her.
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 her 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(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). 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:
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
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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 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.
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, Ms Han Fen Shi, was born on 23 February 1964 in the People’s Republic of China and is a citizen of that country. Following her divorce from her previous husband in 2002, she applied for an Australian visa and on 11 November 2002 was granted a business (short stay) subclass 456 visa.
8. Shortly after her arrival in Australia on 23 November 2002, Ms Shi lodged an application for a protection (subclass 866) visa and attached a statement in support of her claim to be a refugee (supplementary T documents ST1 and ST2, pp1-24).
9. By letter dated 6 February 2003 (ST3, pp25-32), the department informed Ms Shi that her application for a protection visa had been refused as she did not meet the necessary criteria. It also informed her of her right to appeal to the Refugee Review Tribunal (RRT). The letter was addressed to her at 165/422 Pitt Street, Sydney, New South Wales, which was presumably the address of her then agent, and a copy was sent to her personally at 15 Adam Street, Campsie, NSW, 2194.
10. On 26 February 2003, the visa applicant applied to the RRT for review of the Minister’s delegate’s decision to refuse her application for a protection visa (ST5, pp1-5). On the application form, her home address and mailing address were given as 15 Adam Street, Campsie.
11. Ms Shi met the review applicant, Mr Darren James Scorgie on 20 April 2003 and they began cohabitation in about June 2003 (ST6, p146).
12. The RRT affirmed the Minister’s delegate’s decision to refuse Ms Shi a protection visa on 25 September 2003, and on 4 November 2003 she became unlawful as the bridging visa associated with the RRT decision expired. They married at Stanmore on 8 January 2004, and the following day Ms Shi was granted a bridging visa E on departure grounds. The couple departed for China on 14 January 2004.
13. Before they left, Mr Scorgie had completed a sponsorship for a partner to migrate to Australia form (form 40SP) attaching statutory declarations by supporting witnesses. Ms Shi also completed an application for migration to Australia by a partner (form 47SP) for a partner (provisional) (class UF) and partner (migrant) (class BC) visa (T pp54 – 88). A spouse visa application was lodged on 24 October 2005.
14. Ms Shi was subsequently interviewed at the Australian consulate-general in Shanghai by Dr Warwick Eather and Ms Jasmine Shen on 9 May 2006 (ST 6). Notice of intention to refuse the visa under s 501(1) of the Act was issued by the consulate-general in Shanghai on 12 September 2006 and sent to Ms Shi (T pp126 – 128). The delegate’s decision to refuse the visa under s 501 was taken on 30 November 2006 (T pp4 – 5). Mr Scorgie appealed to this tribunal for review of that decision on 14 December 2006 (T pp2 – 3).
15. In her statement dated 28 March 2007 (Exhibit A2), which she adopted under affirmation at the hearing, Ms Shi explained that, having lived in China all her life, she was “accustomed to the traditional Chinese ways of thinking in terms of dealing with government officials and the government”. That traditional approach emphasised complying with documentary formalities, but not having any particular regard for the truth. She had dealt with the Australian embassy in Beijing on the same basis.
16. In September 2002, she had paid an individual whose name she no longer remembers 50,000 Yuan (about AUD$10,000) to prepare an application for an Australian visa, which she proceeded to lodge, paying the 300 Yuan application fee. After the visa was issued, the agent gave her some business cards and identity papers falsely representing that she was the manager of a furniture company.
17. After her arrival in Sydney, she saw an advertisement in a Chinese-language newspaper offering migration assistance. “That was what I was looking for. I wanted to stay and live in Australia permanently”.
18. The agent proved to be “a pregnant lady” who charged her $450 to prepare and lodge the protection visa application. She stated that the agent prepared and submitted the application without her knowledge. When she returned to the agent’s two days later to collect her passport, she was told that the application had already been lodged. “’Your employer is a weaving factory.’ I said, ‘I never worked at a weaving factory’. She said, ‘It doesn’t matter. Everyone else is doing this. Don’t worry’”.
19. The visa applicant categorically denied any knowledge of any stage of the application and review process:
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I had not been aware that the protection visa application was refused in February 2003; I had not been aware that an application for review was lodged in my name to the Refugee Review Tribunal; I had not been aware that this review application was unsuccessful; I had not been aware that I became illegal after the refugee review application failed. I became aware of these [sic] after I sought migration assistance from my later migration agent, Mr Min Wang (Exhibit A2, para 30).
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20. When she met Mr Scorgie in April 2003, “We fell in love with each other nearly immediately”. They started to live together in about July 2003 (at the interview she had said June 2003) and decided to marry in January 2004.
21. As they were both concerned about her migration status, they tried to locate the agent but, being unsuccessful, approached another migration agency in Chinatown:
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Mr Min Wang became our migration agent, and confirmed that I was illegal since October 2003. His advice to us was to apply for a bridging visa to leave Australia, and then apply in Shanghai, China for a partner visa back to Australia. We did accordingly, with Mr Wang’s help (Exhibit A2, paras 34-35).
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22. At the Shanghai interview in May 2006, when asked about her past employment, she believed that she had to be consistent in what she said with the forms and the information provided in 2002. “I gave information according to the documents and business cards given to me by the migration agent in my first visa application”. Later in the interview, when she was warned that she needed to give correct information, she admitted that she had never worked for the furniture company.
23. In relation to her present circumstances, she stated that she and Mr Scorgie are living as a married couple in a house she owns in Handan city. The climate there does not agree with Mr Scorgie and he misses his family. Further, “Darren is showing unstable behaviours recently, and it worries me”. She also misses her son De Long, who now lives in Australia with her ex-husband.
24. At the hearing, when asked if at the interview on 9 May 2006 she had given false information about her position with the furniture company, and later that her friend’s company had sent her to Australia to seek business opportunities, she asked Ms Van Duyn to explain the question but then admitted that the information had been false, because she felt she had to be consistent in what she said. When directly asked if she had given untrue answers, she replied that she had bought the visa and that the application was untrue.
25. She also said twice that she had not worked at all during her stay in Australia between 2002 and 2004.
26. Ms Shi said she had not signed the protection visa application form and that the signature appearing on it (ST1, p10) was not hers. She knew nothing of its contents.
27. She denied any knowledge of the visa refusal and of the application for review in the RRT and said she had not signed the RRT application form. Asked why she had never enquired about the progress of the applications, she answered that it was because she did not know the process. She had later searched for the agent unsuccessfully and then had gone to see Mr Wang. She had only learned that she was illegal in October 2003 because Mr Wang had told her. But she did not know who had lodged the RRT application form, or that it had failed. At that time, she had gone to see Mr Wang with her husband. He had been with her when she had learned that she was in Australia illegally.
28. Ms Shi was then asked about the answer to question six of her partner visa application form, form 47SP (T p54). She had ticked the “No” box in response to the question “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?”. She replied that she could not remember. She went on to say that she did not know how she had ticked the “No” box in response to a question about outstanding debts to the Commonwealth (T p63, question 71) even though she owed $1,000 in relation to the RRT appeal. As regards the declaration about the truth of the application’s contents, which were thus incorrect, and her accompanying signature (T p70, question 92) she replied that her husband had helped her to complete the form.
29. Ms Shi also said that she could not remember the name of her original agent, the “pregnant lady”. Asked where she had lived in Australia, she said she had stayed with a friend for a few days at first and later had lived at Pyrmont in January and February, but of what year she could not recall. She had moved many times and could not remember any of her addresses. She had never lived at Campsie and did not know of that suburb.
30. Ms Shi's tangled evidence in chief and in cross-examination led to a lengthy re-examination. She said that once the protection visa application had been lodged, she believed she could remain in Australia lawfully, but did not know for how long. She had first seen Mr Wang in May, June or July 2003, after trying unsuccessfully to locate her first agent to ask her about the progress of her application. She had given her telephone number to the first agent, who had said she would call her. Mr Wang had told her she was in Australia illegally when they were preparing to get married and had gone to see him. When asked when they had decided to marry, she replied simply that they were preparing to marry.
31. When she had gone to see Mr Wang in June or July 2003, she had asked him about marriage.
32. Later, however, she said she could not recall when she had first seen Mr Wang but added that she had gone to see him alone in the first instance, but had returned at a later date with her husband. But it was “a long time ago”, and she could not remember when.
33. Asked whether Mr Wang had taken over the case when she had visited him alone, or when she was accompanied by her husband, she replied that she gave him the marriage documents and the spouse visa documents.
34. Asked what she meant by saying that Mr Wang “took over” the case, she paused at length without replying. When then asked if Mr Wang had helped her with the RRT application, she replied, “I can’t recall, my mind is all blank, sorry”.
Difficulties with the applicant's evidence
35. There are a number of inconsistencies, evasions and improbabilities in the visa applicant’s written and oral evidence. Here are some of them:
§In her statement (Exhibit A2) she said that she had paid about $10,000, together with the embassy application fee of 300 RMB, to obtain her original business visa. When asked at the interview whether she had paid money for the business visa, however, she replied that she had only paid the 300 RMB application fee (ST6, p144).
§She has given several versions of when she first learned that she was unlawfully in Australia. Her statement is not clear on the point, but it suggests that it was after the visa associated with the RRT appeal expired, or in other words after 4 November 2003. In cross-examination, she said that she had learned she was illegal in October 2003 when she went to see Mr Wang together with her husband. In re-examination, she said it was in November or December 2003, when they were preparing to marry. When asked at the interview when she first knew, she replied that after they were married [on 8 January 2004] they went “to do something” about her status and she was then told that her visa had expired and she was illegal. Mr Scorgie in his statement (Exhibit A3) stated that “I remember that in January 2003, after Fen and I were married, we sought migration assistance from Mr Min Wang on the spouse visa application. When we found out that Fen was staying illegally in Australia, we immediately sought to rectify the situation” (at para 7). At the hearing, however, he said in chief that she had told him on the telephone when they were staying with his parents on the Sunshine Coast from early October to mid-December 2003, or alternatively that Mr Wang had told her by telephone whey they were at the Sunshine Coast.
§She emphatically denied any knowledge of the RRT appeal or its outcome until after it had been dismissed and the visa associated with it had expired (Exhibit A2, para 30). But Mr Scorgie said in cross-examination that she had told him that she had “an application with the Tribunal” but had not heard the result.
§Her claim to have been unaware that her protection visa application and RRT review had been unsuccessful depended on her assertion that she had never lived at the Campsie address. She claimed in fact that she had never heard of Campsie, implying that the agent had invented the address. It is hard to see why even a corrupt agent would fabricate that particular piece of information. Further, Ms Shi said at the hearing that she had given the first agent her (presumably correct) telephone number so that she could inform her of the outcome of her application. She recalled living with Mr Scorgie at Ashfield from mid-2003, and for two months with his parents on the Sunshine Coast, but apart from that, could not remember anywhere she had lived in Australia before moving in with Mr Scorgie, except for two months at Pyrmont (but in what year she did not know). But in response to question 73 on her spouse visa application form (T p64), which asks “In which countries have you lived for 12 months or more during the last 10 years [ie, from 1994 to 2004]?” and calls for her last permanent address in such country, she gave only addresses in China. Her answer does not mention Pyrmont or any other Australian address and rather pointedly stops at November 2002, when she left China for Australia.
§At the hearing, she said categorically that she had signed neither the protection visa application nor the RRT review application. As the signatures on those documents are in Chinese characters, I cannot read them, but they are visually indistinguishable from her undisputed signature on the spouse visa application form. More importantly, however, at the interview when she was asked if she had signed the protection visa forms, she replied that she had probably signed it, but could not recall clearly (ST6, p149). Asked if she had signed the RRT application form, she replied “I did the first time”. But when it was put to her that she was not answering the question and it was repeated, she replied in the negative (ST6, p147).
§Next, there were discrepancies in relation to when she had first consulted Mr Wang. Previously she had maintained that she had first gone to see him in company with Mr Scorgie when they had been unable to locate the first agent. But at the hearing, she admitted for the first time that she had initially visited Mr Wang alone, in June or July 2003. Mr Scorgie himself had not previously been aware of that visit, as he said in his evidence in chief. Ms Shi said she had gone to see him alone to seek his advice in relation to the marriage, but in June-July 2003, according to Mr Scorgie, they were not yet discussing marriage, so that seems unlikely (unless she was seeking his general advice on whether marriage might assist in procuring a migration outcome).
§When asked whether Mr Wang had helped her with the RRT application, she said she could not recall and that her mind was “all blank”. Given what Mr Scorgie called her “almost obsessive ambition to come to Australia” (T p133), that is a most improbable memory lapse. From the RRT’s reasons it appears that the applicant was represented at the primary stage by a migration agent named Champ Qiao, who was apparently known for lodging identical protection visa applications on behalf of various applicants, but was represented by a different agent for the purposes of the appeal (ST4, p40; T p9). (The applicant asserts that the “pregnant lady” was an unlicensed agent who used Champ Qiao’s registration number to lodge applications (Exhibit A1, para 11), but evidence is lacking on that point. She does not claim that the woman was using Champ Qiao’s number without his or her permission.)
§In oral evidence, Ms Shi declared that she had never worked at all in Australia during the time she lived here between 2002 and 2004. At the interview, however, she admitted doing casual work and to working in a Chinese restaurant. After she had come to know her husband, she had ceased working (ST6, p146). The latter version is the more probable, as otherwise there is no explanation as to how Ms Shi supported herself during that two-year period.
§Asked specifically if she had been working at the duty-free store when she met Mr Scorgie, she replied in the negative, saying she had simply been shopping there. But in his October 2005 statement, Mr Scorgie recalled “walking into his [Mr Chen’s] shop and this Chinese girl asked if she could help me” (T p90; actually, Ms Shi’s statement uses similar words: T p89). If you walk into a shop to be met by a woman who asks if she can help you, the ordinary inference is that she works there, not that she is a customer. Ms Shi’s statement also says that she “made friends with the boss and if he was busy I would help him in the shop” (T p89). People who help in shops are usually remunerated for their time.
§In addition to the memory lapses already noted, Ms Shi said at the hearing that she could not remember whether, or why, she had falsely represented in her spouse visa application that she had never been refused an Australian visa. At one point she said she could not recall when she saw Mr Wang and whether she was with Mr Scorgie or alone, adding that it was a long time ago. But 2003 is not a long time ago and those were significant incidents in Ms Shi’s life that she could be expected to remember.
§Ms Shi consistently places the blame for her fraudulent conduct on her first Sydney agent, whose name she claims not to recall (although Champ Qiao, with whom the agent may have been associated, apparently enjoyed a certain notoriety in the industry). She even appeared to be blaming Mr Scorgie for the misrepresentations in her spouse visa application.
Mr Scorgie’s evidence
36. In his two written statements (Exhibits A3, A4), Mr Scorgie stated that he was born on 3 December 1966 at Nambour, Queensland, and is now aged 40. He worked in the lighting industry in sales and design and entertainment lighting for about 12 years, and has a diploma qualification as an English language teacher from Online TEFL.
37. At the time he met Ms Shi in April 2003, he had been separated from his second wife for about 14 months. At some stage in 2003, he commenced divorce proceedings, apparently using the services of Mr Wang, who is a solicitor as well as a migration agent. The marriage was declared dissolved in early December 2003.
38. He said that when he first met Ms Shi, and even when they started living together, he did not concern himself with her migration status. It did not occur to him to ask about it. As the relationship developed, he began to consider the future and they sought the agent who had lodged the visa applicant’s protection visa application, in order to confirm her migration status. When they could not find her, they consulted Mr Wang who, after making enquiries, found that the RRT application had been refused and she had become illegal. He believed that she was unaware of that fact. Mr Wang explained the possibility of applying for a spouse visa from China.
39. At that stage, they planned to live in China and Mr Scorgie obtained employment as an English teacher, initially in a school and later at Xibei University. Mr Scorgie planned to live in China indefinitely and at first greatly enjoyed it. After a family reunion in Bali in January 2005, however, he began to miss his family and was starting to resent the racist harassment to which he was being subjected in China. He was visibly different and was pointed at in the street every day.
40. There was no expatriate community in Handan city and he has few Chinese acquaintances. He relies on his wife for many day-to-day activities. He finds the climate in Handan one of extremes and feels that the pollution is affecting his lungs. He would like to have a family but would not wish to raise a child in China.
41. Mr Scorgie is aware of Ms Shi’s migration contraventions, but:
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I believe that Fen could not have been capable to do each or all of such improper acts on her own volition. Although she has her share of responsibility, I believe that she is more a victim of the improper migration advice and assistance that she received after honestly paying for the advice and assistance (Exhibit A3, para 6).
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42. After their marriage in January 2003, they sought migration assistance from Mr Wang in relation to a spouse visa application, and it was then they discovered that she was staying unlawfully in Australia.
43. Mr Scorgie said he is increasingly living in a state of anxiety and “even discussed ending my own life to protest against the migration department’s refusal of my wife’s application” (Exhibit A3, para 19).
44. At the hearing, Mr Scorgie said he had not previously known that Ms Shi had seen Mr Wang on her own before they visited him together, but said it was not a great problem for him.
45. He said he had seen Mr Wang in September 2003 because they needed some help with their preparations for marriage. Mr Wang had applied for the divorce but there had been a delay caused by the misdirection and loss of some documents.
46. Their meeting in September 2003 was the first time he had seen Mr Wang and on that occasion he did not learn about Ms Shi’s migration status. He had become aware of that when she had telephoned him at the Sunshine Coast some time between early October and mid-December (later, however, he said that Mr Wang telephoned Ms Shi while they were at the Sunshine Coast and he was still awaiting his divorce). Because some of his divorce documents had been lost, it had been necessary to re-apply (it is not clear whether Mr Wang made the first application, or the second or both).
47. Before he had learned that she was illegal, it had been their intention to go to China, where he had the opportunity of working as a teacher. Their plans did not alter when they learned she was in Australia illegally.
48. If Ms Shi were given a visa, they would live at the Sunshine Coast. He no longer enjoys the quality of life in Handan, where he feels very insecure as a foreigner and very much alone in a city where there are few Westerners, and those who do live there tend not to stay long.
49. He is no longer working at Xibei University but can obtain employment in Handan. He has good prospects in the lighting industry in Australia, however. Mr Scorgie telephones his family three or four times a week and has returned to Australia three times since their marriage.
50. In cross-examination Mr Scorgie said that in about August 2003 he had discussed Ms Shi’s migration status with her. He was conscious of these matters, having previously had a girlfriend from Africa. He did not check her passport but realised they would need to have the matter looked into. He had first gone to see Mr Wang about marriage and had not inquired about immigration matters at that point. If Ms Shi had done so on her own, she had not told him. He had thought she was unaware of the situation in that regard.
51. Ms Shi had told him that she had an application with the Tribunal (presumably the RRT) but had not heard the outcome. They had tried unsuccessfully to locate the first agent, and had then consulted Mr Wang. At that stage he did not know about the business visa.
Other evidence for the applicant
52. Mrs Anita Scorgie, the applicant’s mother, in her written statement (Exhibit A6) said that her son is a thoughtful and caring person, family oriented, who is always thinking of other people and has a good relationship with his nieces. He has always worked since he left school as he does not believe in living on the dole.
53. Since they have been in China, they talk twice a week, but he misses his family and he is affected by the air pollution in Handan city.
54. Ms Shi fitted into the family well during the time she lived with them. The nieces enjoyed her company and she was thoughtful and considerate.
55. Darren has a good relationship with Ms Shi's son De Long, who looks to him as a father and thinks more highly of him than of his own father. She feels the family will be devastated if Mr Scorgie has to return to China.
56. At the hearing Mrs Scorgie reiterated those comments. Asked about the time the couple was staying with her, she mentioned that towards the end of that period they received a telephone call from Mr Wang of which she was aware. It did not cause her to change her impression of Ms Shi, as she thought that if she was here unlawfully, it must be for a good reason.
57. The applicant also tendered an affidavit by Cun Ge Song (Exhibit A7) of Oatlands, New South Wales, who recalled that in about late 2003, Ms Shi had spoken about Mr Scorgie in warm terms. After that, whenever she visited Mr Song’s home, Mr Scorgie came too. He gave the impression of being an honest, well-mannered and amiable person.
58. Mr Song attended their wedding in January 2004 and believes their relationship is close.
59. On a visit to China in January 2007, he had collected Mr Scorgie at Beijing Airport. Mr Scorgie had said he was getting tired of living in China, as he was not used to the weather and it was much colder than Queensland. He had to use eye drops frequently because the climate in Handan was so dry.
60. Mr Song grew up in China. He said that many Chinese wish to go overseas in search of a better life. When they apply for visas, they rely heavily on agents who know the procedures and the English language. “Sometimes, if the agents were not honest, and the applicants become victims” (para 21). He believed that Ms Shi had become a victim of the dishonest migration agents who operate in Chinatown. He cannot imagine her as someone who would deliberately cheat others, as he knows her as a law-abiding person. He does not think that she should be punished because of the work of unscrupulous agents.
Applicant’s submissions
61. Mr Gormly pointed out that in relation to both visa applications, the applicant had employed the services of agents who had used their imagination as much as their expertise. In relation to the protection visa, there was some doubt about the applicant's knowledge of how the visa application was progressing. She relied on the “pregnant lady” and had thought the claim was based on membership of Falun Gong. She did not attend the RRT hearing because she did not even know the outcome of the initial visa application, let alone of the RRT review or its result. Notices had been sent to an address in Campsie where she had never lived, and she did not even know the suburb of Campsie. It was at Ashfield that she had lived with Mr Scorgie. The false address was consistent with the behaviour of an agent who does not care. She had sought only the applicant's passport and had fabricated all the other information, as had the agent who handled her business visa application.
62. Her dealings with and through those agents showed how she responds in her dealings with authority. At the Shanghai interview she gave true answers against her interests, because she found herself in a situation of conflict. She had confessed finally and told the truth. The record of interview (ST6, p152) showed how she had relented. On p150 she had admitted having no grounds for a protection visa and applying for one simply because she wanted to stay in Australia. The delegate had used the record of interview as a justification for his adverse decision, but she had in fact told the truth.
63. Mr Gormly said that while he did not want to overstress the point, there were cultural differences between China and Australia in relation to the response to authority. That was relevant to the risks of recidivism – she is now trying to adhere to the values expected of her, and has the benefit of her husband to tell her what is expected.
64. The fact that she saw Mr Wang in July 2003, a meeting she had not previously disclosed, was not important. The fact that she had seen him alone did not conflict with her other evidence, but was merely additional to it. She could not say if he had taken over the conduct of the RRT appeal. She had given two versions of how she had been told that she was unlawful; either Mr Wang had made enquiries on her behalf, or he had the conduct of the RRT case that was decided in September 2003. She had thought she was lawfully in Australia, and indeed was lawfully here until October. She may have known earlier about the progress of the RRT appeal, but we simply do not know.
65. Her relationship with Mr Scorgie is a genuine one. He had said that he had the intention to marry in August 2003, before learning of the RRT decision, and that it was only his divorce that had delayed matters. They could not apply for a spouse visa until the prior marriage was dissolved.
66. While it was not a strong case on the issue of character, Mr Gormly said, she has apologised and voluntarily told the truth.
67. In relation to the exercise of the discretion, the seriousness of her migration offences was tempered by the fact that she would no longer have any need for any migration applications. On the question of recidivism risk, it was relevant that she had voluntarily made admissions against her own interest. Any consideration of the deterrent affect of affirming the decision had to weigh the countervailing consideration that it might have the effect of discouraging the making of admissions.
68. Mrs Anita Scorgie’s evidence that she felt that Ms Shi's presence in Australia, if unlawful, was in a good cause, was an indication of what the community expectations might be in such a situation. The community was likely to be more forgiving in a case such as this.
69. It is the other considerations that weigh most heavily against affirming the decision in this instance. The parties are in a genuine marriage that gives them compassionate claims. Mr Scorgie at present lives in China as an outsider where attitudes to foreigners are unenlightened. The fact that Ms Shi had been happy to live with Mr Scorgie in China showed that the marriage had not been entered into for the purpose of obtaining a visa.
70. Mr Scorgie's relations with his own family, especially since the Bali reunion, also had to be taken into account. He would like to have children with Ms Shi but would be reluctant to do so in China, where the standard of health care, in his view, is below that available in Australia.
71. He had not known about Ms Shi's unlawful status until October 2003, and had not been aware that she herself had doubts on the subject. Her relationship with her son, currently living in Australia, also had to be taken into account on the issue of hardship.
72. In conclusion, Mr Gormly said that the seriousness of her contraventions was a problem, but there were hopeful signs from her face-to-face contacts with Australian migration authorities. She had not attempted to engage in any evasions since the Shanghai interview.
Application of the Law and Findings of Fact
73. 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 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) 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).
…
74. 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).
75. As Senior Member Ettinger has said, “There must be 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).
76. 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.
77. 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)).
78. 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.
79. I find that the visa applicant has committed breaches of immigration law and has made false or misleading statements in connection with visa applications within the meaning of paragraph 1.9 of Direction No 21. She knowingly supplied false documents in support of her business visa application in Beijing and falsely represented that she intended to come to Australia only for the purpose of a short business visit. Shortly after her arrival, she made a protection visa application relying on wholly fabricated grounds and maintained those grounds in her appeal to the RRT. She made a false statement and a misleading material omission in her spouse visa application and provided false information at her interview in Shanghai on 9 May 2006. At that interview she did admit that her previous answers had been false, but only after the searching nature of the questioning made it obvious that it would be difficult or impossible to maintain the lie.
80. Even so, after saying “I don’t want to lie” and admitting that she had not worked for the furniture company, she went on to provide yet another false version, saying that a friend of hers had asked her to go to Australia for business purposes in his place (ST6, p152). She did depart voluntarily from Australia in January 2004, but only after exhausting the other possibilities for remaining in Australia and at a time that was convenient to her after marrying Mr Scorgie, when she knew she had little choice but to depart in order to apply for a further visa.
81. She claims to have been the victim of corrupt agents at all stages, from the business visa application to the protection visa application to the RRT appeal. But as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, 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.
82. In any event, her attempts to portray herself as an ingénue who fell victim to a corrupt agent are unconvincing. At the time she applied for the business visa, Ms Shi was aged 38 and had been earning her living as a travelling saleswoman in medicinal products. She undoubtedly knew the ways of the world and when she paid out $10,000 to a corrupt agent in order to obtain the business visa in Beijing, it was probably because she believed she was unlikely to receive a tourist visa (T p132). She thus knew that the business visa application was based on false documents and misrepresentations aimed at securing a migration outcome.
83. She claims that once in Australia she did not intentionally employ an agent who would help her to make false claims (T p132), but her prior and subsequent conduct make that unlikely. It is more probable, as the delegate thought, that she sought a migration agent who would be prepared to lodge false or frivolous visa applications (T p23).
84. In cases such as this, applicants not infrequently offer evidence that they have duly paid income tax while working in Australia, in support of their claims to be of good character. In this instance, there is no evidence that Ms Shi ever paid income tax or that she had a tax file number, although the spouse visa application form invited her to supply that kind of number (T p57, question 32). Her implausible attempts to deny ever having worked in Australia at all may have been designed to forestall such a line of inquiry.
85. There is no evidence of recent good conduct indicating that her character may have reformed, and indeed her attempts to mislead the tribunal in her evidence at the hearing suggest the contrary. Her expressions of regret must therefore be viewed as largely tactical. Subject to what I have said about tax, there is no evidence that the visa applicant has committed any other types of offences in Australia. But her record of migration law violations is serious in itself, and the applicant’s character in a migration sense is central to these proceedings. There is no evidence of mitigating factors.
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 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.
…
88. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
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 2.11, general deterrence, “aims to deter other people from committing the same or a 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 tendered false documents and made multiple false or misleading statements in connection with entry or stay in Australia. 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 applicant made much of alleged social norms applying in China that tolerate the making of false and misleading statements in dealings with government authorities. That kind of cultural relativism argument has not found favour with the tribunal: Re Ly and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 435 at paras 15-16.
93. In his letter of 11 October 2006, Mr Scorgie assured the department that “I have made absolutely certain that she is now very much aware of the difference between the Australian and Chinese ways of supplying honest answers to all requests for information” (T p133). Yet she went on to supply false or misleading information in her statement of 28 March 2007 and later at the hearing, despite her assertion in that statement that she had “now understood the values and standards of Australia, and am willing to abide by them” (Exhibit A2, para 54).
94. 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. As was pointed out above, her attempts to mislead the tribunal in her oral and written 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.
95. Mr Gormly submitted that if Ms Shi were granted the visa sought, there would be no need for her to make any further migration applications and, consequently, no occasion for the kinds of contraventions she had committed. That line of argument was rejected by the tribunal in Re Beale and Minister for immigration, Multicultural and Indigenous Affairs [2002] AATA 714.
96. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. It is 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.
97. According to the delegate, Mr Heath, there are specific reasons for thinking that decisions in cases such as the present one may have incentive effects one way or the other. He notes that the Chinese community in Australia is relatively close-knit, with its own ethnic associations, newspapers and community networks, and the outcome of decisions such as this one are passed around within segments of the community and also between some unscrupulous migration agents.
98. Evidence of the role of migrant community networks in the operation of deterrence was referred to in Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at paras 104-105.
99. Mr Heath continues:
…
The use of PV applications based on false protection claims by Chinese and certain other nationals to extend their stay in Australia for reasons other than a genuine need for Australia’s protection is a systemic problem at present. Current statistics indicate that the highest numbers of PV applications currently being lodged are made by Chinese nationals, many based on false or frivolous claims.
…
My experience and analysis of these cases indicates that after exhausting their attempts to remain in Australia a significant proportion of those taking this path marry Australian citizens before they depart Australia, apply for spouse migration, and if successful, later divorce their Australian sponsor and “reconcile” with their former Chinese spouse who they then sponsor themselves. This is a not uncommon pattern. In saying this, I also note … that Ms Shi’s former husband and her adult son were granted spouse migration visas for Australia in 2005, sponsored by another person. Whether her former husband also took the “well trodden path” is not within the scope of this decision” (T p23).
…
100. While Mr Heath’s conclusions have a relevance to the issue of general deterrence, I do not suggest that the scenario he describes as typical is on all fours with the present case.
101. It may also be noted that Deputy President Wright in Re Barattini and Minister for immigration, Multicultural and Indigenous Affairs [2005] AATA 157 dismissed the contention that other intended visa applicants are unlikely to be deterred by refusing a visa in such cases:
…It is often submitted to me that intending visa applicants are unlikely to become aware of the outcome and the reasons for such an outcome in an individual case because media exposure is not accorded to any, save high profile applicants, and in any event confidentiality orders sometimes apply. I do not accept such arguments. 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 (at para 38).
…
102. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa refusal is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. That includes deterring the use of corrupt agents who are prepared to lodge fraudulent applications. 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
103. 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.
…
104. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). 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).
105. The community’s sense of fairness will also be a factor informing its expectations. As Deputy President Chappell said in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480, it is an affront to the Australian community that certain persons and their advisers should abuse the assessment process in a flagrant and deliberate manner in order to obtain benefits, such as residency and the right to work, to which they would not otherwise be entitled (at para 83).
106. At the same time, 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]). There would be sympathy for Mr Scorgie’s position, but not at the expense of all other considerations.
107. 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
108. There are no children whose interests need to be considered under this heading.
Other considerations
109. 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.
110. Mr Gormly submitted that the other considerations were the strongest argument in his client’s favour. Mr Scorgie’s marriage to the visa applicant is genuine and living in Handan city he feels something of an outsider. Since the Bali reunion he has been missing his Australian family and he prefers the climate of the Sunshine Coast to that of Handan.
111. On the other hand, he is able to find work in Handan and his remuneration to date has been quite high by Chinese standards. He lives in the house owned by Ms Shi.
112. His commitment to Ms Shi is genuine, although his feelings on first meeting Ms Shi in the duty-free store suggest that, for a twice-married man aged 37, he was at that time somewhat impressionable: “Within a few minutes I started feeling very nervous as I think I was falling in love” (T p90). Perhaps for that reason, after the relationship developed he did not ask to see her passport. But from his earlier experience with an African girlfriend he knew that migration status had to be taken into account in relationships with non-citizens.
113. Mr Scorgie was aware of her unlawful status in Australia two months before the wedding at the latest and probably considerably before that, as she told him that she had a matter pending in the Tribunal (presumably the RRT) but had not heard the result. She did not tell him that she had independently sought Mr Wang’s advice, but he knew enough to be aware that her obtaining permission to live in Australia could not be taken for granted. That does not alter the fact that he will suffer hardship, but it does reduce the weight to be given to it, as was made clear by Deputy President Purvis in Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145 at paras 35, 46 and 50 and by Deputy President McMahon in Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at para 35.
114. If the decision under review is affirmed, Mr Scorgie will thus suffer some hardship if he continues to live in China, which he no longer finds particularly congenial. He is likely to miss his Australian family, as they will him, but reciprocal visits will remain possible.
115. Ms Shi has no business or other economic interests in Australia. As was noted above, there is no evidence of recent rehabilitation, and indeed the facts point in the opposite direction.
116. The other considerations do, however, weigh in favour of granting a visa in this case. While paragraph 2.17 of Direction No 21 states that other considerations are generally to be given less individual weight than the primary considerations, I do not exclude the possibility that there can be exceptions in strong cases. In the present case, however, the primary considerations of community protection and expectations outweigh the other considerations.
117. The decision under review is affirmed.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ......................[sgd]..................................................
R. Wallace, AssociateDate/s of Hearing: 28 June 2007
Date of Decision: 10 August 2007Solicitor for the Applicant: Mr Julian Gormly of counsel
Solicitor for the Respondent: Ms Tessa Van Duyn, Clayton Utz
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