Shum and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 94

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/289

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MAN CHUNG SHUM

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon. R J Groom (Deputy President)

Date31 January 2005

PlaceMelbourne

Decision The matter is set aside and remitted back to the respondent with the direction that the visa not be refused on character grounds.

(Sgd. The Hon R J Groom)

Deputy President

CATCHWORDS

Immigration - Contributory Parent (CA-143) Visa - refused on character grounds - overstaying and working without permission - misleading statements - countervailing factors - decision to refuse set aside

Migration Act 1958 ss. 499, 501

Ministerial Direction No. 21

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

Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277

Re To Nguyun Doung v Department of Immigration and Multicultural Affairs 2001 (AATA) 442

REASONS FOR DECISION

31 January 2005 The Hon. R J Groom (Deputy President)           

1. This is an application by Man Chung Shum (“the review applicant”) to review the decision of the Respondent’s delegate dated 16 February 2004 made pursuant to s.501 of the Migration Act 1958 (“the Act”) to refuse the application of Yee Sum Chan (“the visa applicant”) for a Contributory Parent (CA-143) Visa.

2.      The hearing was held in Melbourne on 27 October 2004.  Mr Guy Gilbert appeared for the review applicant and Mr Russell Rigby for the respondent.  Oral evidence was given in person by the review applicant.  The visa applicant gave evidence by telephone from China.  Several documents were tendered in evidence.

Background Facts

3.      I find the following background facts as set out in this and subsequent paragraphs:

(a) The review applicant is the son of the visa applicant and the sponsor of her application.  He became an Australian citizen in 1999 and is residing at Mitchell in the Australian Capital Territory.  The visa applicant is presently residing at Shanghai in the Peoples Republic of China and is a citizen of that country.

(b) The visa applicant was born on 30 April 1947 (now aged 57 years) in Shanghai China.  On the 17 September 1974 she married Pui Kei Shum.  The visa applicant’s son and only child Man Chung Shum, the review applicant, was born on 30 June 1975 (now aged 29 years).

(c) On 8 May 1989 the visa applicant was issued with a Visitors Visa for Australia and then travelled to Australia with her husband and son (then aged 14 years) arriving on 21 October 1989.  The visa issued to the visa applicant did not permit her to work in Australia.

(d) On 12 August 1990 the visa applicant was issued with a further Visitors Visa which again did not permit her to undertake any work in Australia.  That visa was valid until the 21 July 1990.

(e) The visa applicant and her husband and son overstayed their visas and remained unlawfully in Australia from 21 July 1990 until 31 January 1992.

(f) On 31 January 1992 the visa applicant’s husband applied for refugee status.  She and her son were included in the application as secondary visa applicants.  They were all then granted a Bridging Visa C.

(g) The visa applicant subsequently also applied for refugee status.  Both applications by the visa applicant and her husband were subsequently refused.   Applications were then made for a review of these decisions but those applications were unsuccessful as were further applications for Protection visas.

(h) At limited times during the course of various visa applications the visa applicant was granted permission to work.  The evidence before me is that during the course of her residence in Australia from 21 October 1989 until 9 December 2002 the visa applicant was entitled to work during the following periods:

(i)   19 September 1995 to 4 January 1996

(ii)   6 May 1998 to 8 January 1999

(iii)  10 August 2001 to 12 August 2002

Therefore of the visa applicant’s total period of residence in Australia of a little over 13 years she was permitted to work for periods totalling approximately 2 years.

(i) For a further period from 4 January 1996 until 24 October 1997 the visa application did not hold a visa and was unlawfully resident in Australia.

(j) On 30 April 1999 the review applicant was granted his Australian citizenship.

(k) On 10 August 2001 the visa applicant was granted a Criminal Justice Visa which related in part to the conduct of a Dr Theophanous who had been engaged by the family to assist in their applications.  The Criminal Justice Visa ceased on 12 August 2002.

(l) For the further period from 12 August 2002 until 21 August 2002 the visa applicant did not hold a visa and again was resident in Australia unlawfully.

(m) On 26 October 1993 the visa applicant was located working unlawfully at Omnitex Industries and was directed to stop.  She was warned in writing at that time that working illegally was a serious offence carrying a fine of up to $5,000.00.

(n) On 3 June 1998 the visa applicant and her husband incorporated a company Furama Group Pty Ltd to purchase and operate a licensed brothel at Mitchell in the Australian Capital Territory.  At the time the brothel was purchased the visa applicant had permission to work.  However in early 1999 the visa applicant’s application for a Subclass 850 Visa was refused.  She  and her husband then resigned from the company and appointed the review applicant to be a director and shareholder of the company.

(o) The visa applicant has stated that she did not undertake work at the brothel in the Australian Capital Territory.  I will refer to that issue in more detail later in this decision.

(p) On 21 August 2002 the visa applicant was apprehended and placed in detention as an unlawful non-citizen.  She remained in detention until 23 October 2002.

(q) The visa applicant was then granted a Bridging Visa E with conditions as to her departure from Australia.

(r) The visa applicant and her husband paid for their air tickets and departed Australia on 9 December 2002.  Their only son, the review applicant, as an Australian citizen continues to reside in Australia.

(s) On 20 December 2002 the visa applicant lodged a Contributory Parent (CA-143) Visa application with her husband as the secondary visa applicant.

(t) That visa application was refused on 16 February 2004 on character grounds pursuant to s.501 of the Act.

Section 501 and Direction 21

4. Section 501 of the Act provides relevantly:

“501(1)The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.

…

501(6) For the purposes of this section, the person does not pass the character test if:

…

(c) having regard to either of the following

…

(ii) the persons past and present general conduct;

….  the person is not of good character”

5. The exercise of power under s501 of the Act involves, firstly a consideration of whether the visa applicant is “not of good character” and secondly, of whether the residual discretion not to refuse to grant the visa should be exercised in the visa applicant’s favour notwithstanding her failure to pass the character test.

6. In her decision the Minister’s delegate refused to grant the visa on the basis that she found that the visa applicant had not passed the character test and that she should not exercise the discretion in s501 of the Act in favour of the visa applicant.

7. Under Section 499(1) of the Act the Minister in empowered to give directions to a person or body performing functions or exercising powers under the Act. On 23 August 2001 the Minister, pursuant to Section 499(1), issued Direction No 21 providing guidance to decision makers in making decisions to refuse or cancel a visa under Section 501 of the Act (“Direction 21”). This Tribunal is required to accept the guidance of this direction so long as it is consistent with the provisions of the Act and regulations made thereunder. (see s.499(2) of the Act and Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583)

8. Direction 21 consists of two parts. Part 1 provides directions on the application of the Character Test. Non-citizens who are being considered under s.501 must satisfy the decision maker that they pass the Character Test. If the non-citizen fails the Character Test then Part 2 of Direction 21 provides guidance in the exercise of the discretion under s.501 to grant or refuse a visa.

9. Paragraph 1.9 of Direction 21 provides examples of matters which, in the absence of countervailing factors, constitute a failure to pass the character test. These include the following relevant matters:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law …….  This could include, but need not be limited to:  ….. breaches of immigration law ……

(b) whether the non-citizen has, in connection with any application for the grant of a visa ……. made a false or misleading statement

10. Paragraph 1.10 of Direction 21 provides that ….. “…. Both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizens character ……”

11. In considering Section 501 of the Act and the Character Test the Full Court of the Federal Court of Australia in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 said:

“The concept of “good character” in s 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 short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”

12.      I find on the evidence before the Tribunal that the visa applicant has shown a degree of disregard for the migration laws of Australia and for the conditions attached to her various visas.  Clearly she and her husband were determined to remain in Australia and be with their only child who resides here and is an Australian citizen.  This desire is certainly understandable but does not excuse the on-going disregard for Australia’s migration laws displayed by the visa applicant for substantial periods of her 13 year stay in Australia.  This cannot be condoned.  I now turn to some particular matters of concern to the Tribunal:

(a) The visa application readily admits that she stayed unlawfully in Australia for significant periods.  The overstays were for several periods spread intermittently between July 1990 and August 2002.  The precise periods properly conceded in the Applicant’s Statement of Facts and Contentions were:

·21 July 1966 to 30 January 1992

·4 January 1996 to 24 October 1997

·12 August 2002 to 21 August 2002

Some concerns were expressed by the visa applicant about a lack of timely advice to her about her obligations.  She also said she was confused about her situation.  The Tribunal is, however, satisfied that for most of the above periods the visa applicant was generally aware that she had no legal right to remain in Australia but continued to do so.

(b)The visa applicant readily admits that she worked at various times contrary to the prescribed conditions in her visa or when she was otherwise not permitted to work in Australia.  She was allowed to work for some periods during her total stay in Australia.  Those periods have already been detailed in paragraph 3 (h) above. 

In paragraph 13 of her statutory declaration dated 30 August 2004, and tendered in evidence, the visa applicant stated:

“I agree that I was working in Australia from time to time without permission.  Again I am sorry that I did this, but we had no other source of income.  There were times when I did have the right to work.”

(c) The visa applicant stated in answer to question 17 in a Department of Immigration and Ethnic Affairs form entitled “Personal Particulars for Character Assessment” dated 8 December 2002 and signed by the visa applicant, that she worked from 1989 to 1992 in a “factory” and that from 1993 to 2002 she was “helping husband and son”. 

(d) Inconsistent with her answers to that question, the visa applicant was found by departmental officers working in a factory, as mentioned in paragraph 3 (m) above, on the 26 October 1993 and directed then to cease working.

(e) The Tribunal does not accept the visa applicant’s contention that she did not work at the brothel and played no role in the business.  I find, after carefully assessing all of the written and oral evidence, that the visa applicant did play some role in the operation of this business for much of the period from the date of its purchase until the visa applicant was apprehended and required to depart Australia.

The following matters influence my conclusion on that matter:

(i)In a telling statement over the names “P K Shum” and “Y S Chan” dated 22 August 22 2002, which was forwarded to the Department by “Chua Tan & Associates” the following comments were made:

“Our business is open 24 hours a day so we must have one driver and two telephone operators.  My wife, son and I take turns to look after our business to make sure that things are operating smoothly.  If my wife and I return to Hong Kong, leaving my son to take care of our 24 hours business.  Our business will not survive and will result in our workers losing their jobs”.

(ii)When the company Furama Group Pty Ltd was first incorporated the visa applicant was named as a director and also as company secretary.  This evidence confirms that she played a major role in the establishment of the business.

(iii)It is significant that two contracts engaging a so-called “receptionist” for the brothel business, dated 25 and 26 June 2002, were both signed by the visa applicant “for an on behalf of Furama Group Pty Ltd”.  It is reasonable to suggest that only a senior responsible person involved in the day to day operation of the business would sign such an agreement on behalf of the company.

(iv)A document from AMP Superannuation Savings Trust addressed to the visa applicant shows that she was a member of the Furama Group Pty Ltd Superannuation Plan as at 31 March 2002 and refers to an “employee number” which it is reasonable to assume is a reference to Furama Group Pty. Ltd.

(v)For the period 1 July 1999 until 30 June 2000 the visa applicant was assessed by the Australian Taxation Office as having a taxable income of $20,840.00.  The comparative figure for the financial year ended 30 June 2001 was $24,513.00.  The visa applicant claimed in evidence that this was a “shares division” rather than being salary or wages for work performed.  There was insufficient evidence on this particular issue to enable me to determine the nature of the income declared.

(vi)In evidence the visa applicant claimed that she and her husband lived in the back section of the building at 6/8 Huddard Street, Mitchell in the ACT. She said in her statutory declaration “only the front section is used by our son for his business”.  She admitted in the evidence to sometimes operating the door for customers and chatting with them.  The review applicant stated that his mother would occasionally lend a hand and “open the door for me” and “make a cup of tea or coffee”.

(vii) Both applicants have understated the visa applicant’s role in the brothel business.  Perhaps this was because there were extensive periods when she was not permitted to work at all and possibly because the visa applicant did not wish to be seen to be an active and direct participant in a business of this kind.  The seriousness of this matter is tempered by the visa applicant’s admission that she did some menial tasks in the operation.  In addition the fact is that there were limited periods when the visa applicant was permitted to work in Australia. 

13.      Although “breaches of immigration law” is specifically referred to in paragraph 1.9 (a) of Direction 21 and along with the general phrase in that paragraph “….. been involved in activities indicating contempt, or disregard for the law …..” I do not consider the migration misconduct by the visa applicant to be at the most serious end of the scale of wrongdoing of this type.  There is not present here the kind of fraud, deceit, and use of bogus documents etc. that one finds in some applications of this sort.  Harking back to the views of the Full Federal Court in Goldie’s case (Supra.) the Tribunal must ask are the applicant’s enduring moral qualities so deficient that for the public good she should be refused entry to Australia?  This is a high threshold test.  To say of someone that they are not of good character is a significant statement which must have a sound basis.

14.      Some sections of the community might hold the view that mere involvement in operating a brothel business indicates a certain deficiency in character.  The evidence is that the brothel concerned is properly licensed under the Prostitution Act 1992 of the Australian Capital Territory and is therefore an entirely lawful business.  It would be wrong for the Tribunal to conclude that there are serious character concerns merely because a person is involved in such a legal business.  I do not infer any character deficiency on the part of the visa applicant from this  involvement.

15.      The Tribunal does recognise that there is a countervailing factor in the complex and confusing migration history since the visa applicant and her family first entered Australia.  Many applications have been made for various types of visas.   Some of these applications were successful and others were not.  As pointed out in 3 (h) above for some periods of time the visa applicant was permitted to work but not at other times.  In paragraph 12 of her Statutory Declaration tendered in evidence she said:

“In the first two periods when I became unlawful we had a migration agent but there were always problems contacting him.  With so many different visa applications I was confused about my situation.  On the last occasion I thought that I had 28 days after the expiry of the Criminal Justice Stay Visa to leave.  I did not realise that I became unlawful immediately as no one advise me about it.  I know there can be no real excuse for becoming unlawful, and am very sorry about it”.

I recognise that it would certainly be quite confusing for a non-citizen with limited English to be granted the right to work at one point in time and then later have that right withdrawn and to be expected to fully understand all the requirements and obligations place upon her.

16.      I mention another issue raised in the course of the hearing.  The visa applicant and her family engaged a person namely Dr. Theophanous to assist them in their visa applications.  There is little evidence on this matter formally before the Tribunal.  The person concerned was charged and convicted of serious criminal conduct.  I find on the limited evidence available to me that the actions of the individual concerned and the difficulties the visa applicant had in making contact with him added to her confusion.

17.      I must take into account any evidence of good character.  In this case it is another countervailing factor.  It appears on the evidence before me that the visa applicant is a hardworking person who has held responsible positions in the past, has diligently undertaken various courses to improve herself including learning English for 1 ½ years at TAFE at Chadstone in Victoria and is financially self-sufficient.  She has filed tax returns and paid her taxes in Australia.  Of very real significance is the fact that she, at 57 years of age,  has no police record of any kind for breaches of the law in Australia or elsewhere.

18.      At present the visa applicant is living in Shanghai, China and there is no evidence to suggest that whilst residing there she has been anything other than a good law-abiding citizen of that country.

19.      I find after carefully considering all of the evidence before me that although the visa applicant has been guilty of migration misconduct it is not of the most serious kind.  Apart from the episodes of overstaying and working without permission which arose partly out of her desperation to remain in Australia and partly at times out of confusion, and her failure to be completely frank about her involvement in the brothel business, the visa applicant at her core appears to be essentially a hard-working, law-abiding person.  Although she has shown a degree of disregard for Australia’s migration laws she has shown respect for other laws.

20.      As was said in Goldie’s case (Supra) s.501 is not concerned with whether a person “meets the highest standards of integrity”.  The visa applicant may not meet that standard, however I am satisfied on the evidence before me that her character is not so deficient that it is for the public good that she be refused entry.

21. Having had the opportunity to hear the evidence of the visa applicant and her son, and after carefully weighing up all of the evidence, written and oral, I find that the visa applicant has discharged her onus of satisfying the Tribunal that she passes the Character Test in s.501 of the Act.

22. Even if I had found that the visa applicant did not pass the character test I would nevertheless exercise the residual discretion in s.501 of the Act in her favour.

23.      I agree with the view expressed by Deputy President Wright in Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 (AATA ) 442 when he said:

“… the Tribunal is not confined or fettered by the Minister’s Direction and is free and, indeed has the duty, to make its own assessment of how the discretion should be exercised according to the justice of the case by balancing and evaluating the competing issues which have arisen for resolution.  In this process so-called secondary considerations may well outweigh primary considerations depending upon the facts of the case (see Aksu v Minister for Immigration and Multicultural Affairs per Dowsett J [2001] FCA 514)”.

24. As stated in 2.2 of Direction 21:

“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”.

25. So the duty of the Tribunal in a case such as this is to carefully weigh up all of the competing considerations, and paying due regard to Direction 21, decide how best to exercise the discretion in order to achieve justice.

26. I have carefully considered the “three primary considerations” in Direction 21 and all of the “other considerations“. Taking into account all of the evidence, including the detailed evidence about the visa applicant’s conduct, and each of the “primary” and the “other considerations” I find that the compassionate claim of the review applicant clearly outweighs all other considerations in determining how to exercise the discretion.

27. Full and proper consideration must be given to the impact on the review applicant, an Australian citizen, should the visa applicant not be able to come to Australia to live. The review applicant has spent much of his life in this country arriving as a 14 year old. He is the only child in a small loving family unit. Obviously he should not be required to give up all his rights and entitlements as an Australian citizen to travel to join his mother in China unless there are compelling reasons why that should be necessary. If the family unit cannot be restored then I am satisfied that the review applicant will suffer significant distress and hardship. He is obviously extremely anxious to be able to support and care for his mother as she grows older. I believe these compassionate claims outweigh all of the other considerations set out in Direction 21. So were I called upon do so I would exercise the discretion given to me in s.501 in favour of the visa applicant.

28.      The decision of the Tribunal therefore is that the decision under review is set aside and the matter is remitted to the Respondent with the direction that the visa not be refused on character grounds.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. R J Groom (Deputy President)

Signed:  R. Hunt (Administrative Assistant)

Date/s of Hearing  27 October 2004
Date of Decision  31 January 2005
Counsel for the Applicant         Mr Guy Gilbert
Solicitor for the Applicant          Chua Tan & Associates
Counsel for the Respondent     Mr Russell Rigby
Solicitor for the Respondent     Blake Dawson Waldron