Sleeth and Minister for Immigration Multicultural and Indigenous Affairs
[2005] AATA 611
•29 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 611
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/705
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD JOHN SLEETH Applicant
And
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date29 June 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion allowed for in section 501 of the Migration Act 1958 should be exercised in favour of granting Suzhen Qiao a Provisional Spouse Visa.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION – Spouse Visa – visa applicant entered Australia on tourist visa – obtained bridging visa – remained in Australia and worked in Australia after refusal of application for protection visa – married to Australian – stable marriage – significant compassionate circumstances - discretion exercised in applicant’s favour – decision to refuse spouse visa set aside
Migration Act 1958: s.501
REASONS FOR DECISION
Deputy President Don Muller 1. Richard John Sleeth, the Review Applicant, is an Australian citizen, having been born in Korumburra, Victoria, on 26 April 1954. He is married to Suzhen Qiao, the Visa Applicant, who is a citizen of China, having been born in Shanghai on 10 July 1963.
2. On 20 January 2004, Suzhen Qiao applied for a Subclass 309 provisional spouse visa, sponsored by Richard Sleeth.
3. On 27 August 2004, a delegate of the Respondent refused to grant Suzhen Qiao a Class UF subclass 309 Provisional Spouse Visa on the ground that she did not pass the “character test” as defined in subsection 501(6)(c)(ii) of the Migration Act 1958, and further that the discretion allowed for under s.501(1) of the Act should be exercised to refuse to grant the Spouse Visa.
4. Richard Sleeth seeks a review of the decision to refuse the grant of the Spouse Visa to his wife, Suzhen Qiao.
5. At the hearing Richard Sleeth represented himself and his wife. The Respondent was represented by Ms. Bennett, solicitor.
6. Richard Sleeth gave evidence by way of a written statement plus oral evidence.
7. The T-documents contained, among other things, the following documents:
(a)The application for spouse visa plus supporting documents such as birth certificates, passports, marriage certificate and statements by Richard Sleeth and Suzhen Qiao, bank statements, tenancy agreements and medical reports.
(b)The decision by the delegate of the Respondent.
(c)Air travel movement details.
(d)A record of interview conducted on 27 April 2004, between Suzhen Qiao and a representative of the Respondent at the Australian Embassy, Shanghai, with a Mandarin interpreter.
(e)Another record of interview conducted in Shanghai on 6 August 2004.
8. It is now common ground between the parties that Ms. Qiao entered Australia on 2 May 1998 on a valid Subclass 676 Visitor (Short Stay) Visa with the condition 8101 No Work, with a genuine Chinese passport.
9. Initial investigations by officials of the Respondent’s Department got off to a bad start when, through an unfortunate mis-statement by an immigration agent, the officials came to the view that Ms. Qiao had bribed Chinese officials with $50,000 to obtain a false passport and false visa to come to Australia. It is now clear that she paid a travel agent in China 50,000 Yuan, which is equivalent to about $AUD8,000, to be apportioned 20,000 Yuan for return airfare, taxes, visa application and holiday fee, and 30,000 Yuan to be retained by the travel agent, as a type of bond, to be refunded to Ms. Qiao on her return to China.
10. It is also common ground between the parties that although Ms. Qiao’s entry into Australia with the tour group was legal, she failed to return to China with the tour group. She remained in Australia and then, contrary to the conditions of her Tourist Visa, she obtained employment in Australia. She also forfeited the 30,000 Yuan bond she had paid to the Chinese travel agent.
11. Ms. Qiao managed to remain in Australia for over five years. She eventually made a “supervised departure” from Australia to China on 8 August 2003.
12. There is no doubt that for a significant portion of the five years Ms. Qiao was in Australia she was an “unlawful non-citizen”.
13. The questions for determination by the Tribunal are whether the circumstances under which Ms. Qiao remained unlawfully in Australia are such that she should be held to not pass the “character test”; and whether, if that be the case, there are other factors which satisfy the Tribunal that the discretion allowed for in s.501(1) of the Act should be exercised in her favour.
14. The relevant subsections of the Act for the purposes of this review are contained in s.501 and provide:
“501 Refusal of cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(1) 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.
Note: Character test is defined by subsection (6).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) ....
(b) …
(c) having regard to either or both of the following:
(i) …
(ii) the person’s past and present general conduct;
the person is not of good character;
Otherwise, the person passes the character test.”
15. The following matters are not in dispute and the Tribunal finds as follows:
(a)Richard John Sleeth, the review applicant, was born on 26 April 1954, in Korumburra, Victoria, Australia. He is an Australian citizen.
(b)Suzhen Qiao, the visa applicant, was born on 10 July 1963, in Shanghai, China.
(c)Ms. Qiao has a son Jie Xu who was born on 13 May 1989, in Shanghai, China. The father of Jie Xu is Mr. Liang Xu.
(d)Ms. Qiao and Mr. Xu were divorced on 23 September 1992.
(e)On 2 May 1998, Ms. Qiao arrived in Australia, in Sydney, on a Subclass 676 Visitor (Short Stay) Visa with the condition 8101 No Work. Her passport was genuine and her visa was valid. She entered Australia as part of a tour group organised by the workers in a Shanghai factory. Her Visa contained the following notations:
CLASS TR VISITOR P
SUB CLASS 676
CONDITIONS MIG. REGS. SCHED.8
8101 NO WORK
8201 MAX 3 MONTHS STUDY
GRANTED 25 APR 98. MUST NOT ARRIVE AFTER 15 MAY 98.
SINGLE TRAVEL.
HOLDER(S) PERMITTED TO REMAIN IN AUSTRALIA UNTIL 15 MAY 98.(f)Within about one week of arriving in Sydney, Ms. Qiao left the tour group and obtained employment at a brothel in Ryde, a Sydney suburb. The leader of the tour group retained possession of Ms. Qiao’s passport, but she retained a photocopy of her passport. She had made photocopies of her passport before she left China.
(g)Ms. Qiao’s Visitor Visa expired on 15 May 1998.
(h)On 20 July 1998, Ms. Qiao used the services of an immigration agent, PC International, to lodge on her behalf an application for a Protection Visa, a Subclass 866 Protection Visa. The application contained a lengthy statement which claimed that Ms. Qiao and her family had been persecuted in China and that she was fearful for her life if she returned to China. This information was not correct. The application gave an “Address for correspondence” at 18/44-48 Milton Street, Ashfield, NSW.
(i)On 29 July 1998, Ms. Qiao, through the same immigration agent, applied for, and was granted, a Subclass 030 Bridging Visa C, with the condition 8101 No Work.
(j)On 6 August 1998, Ms. Qiao was detained by officers of the Department of Immigration and Multicultural and Indigenous Affairs. Her Bridging Visa C was cancelled because she had been working in Ryde, in breach of her bridging visa condition. She was transferred to Villawood Detention Centre.
(k)On 7 August 1998, Ms. Qiao was interviewed by an officer of the Department with the aid of an interpreter. She told the officer that she thought she had been able to remain in Australia for three months on the Visitor Visa. She denied that she had been working for wages. She claimed to have done the cooking in exchange for free lodging. She denied working as a prostitute.
(l)On 10 August 1998, Ms. Qiao was granted a Subclass 050 Bridging Visa E with the conditions 8101, 8201, 8402, 8505, 8506, 8507 and 8510. She was released from detention upon paying a surety of $3,000.
(m)On 8 September 1998, a Case Officer, Onshore Protection, wrote to Ms. Qiao to inform her that her application for a Protection Visa had been refused. She was told that her Bridging Visa allowed her to remain in Australia for a period of 28 days from when she received the letter. She was informed about her rights of review and she was also told that if she applied for a review of the decision within 28 days of notification, her Bridging Visa would be valid until 28 days after a final decision was made on her application.
(n)On 30 September 1998, Ms. Qiao lodged an appeal against the decision to refuse her a Protection Visa, with the Refugee Review Tribunal (RRT).
(o)In October 1998, Ms. Qiao moved from her address at Ashfield to a new place of accommodation at Burwood, without informing the Department. Ms. Qiao obtained a job working in a Chinese restaurant in Liverpool Road.
(p)On 20 April 1999, the RRT affirmed the Respondent’s decision to refuse the visa applicant a Protection Visa.
(q)On 12 May 1999, Ms. Qiao requested Ministerial intervention under section 417 of the Act. She gave her address at that time as Room 402, Dixon House, 413-415 Sussex Street, Sydney.
(r)On 13 October 1999, Ms. Qiao was informed that the Minister had declined to exercise his power to intervene on 4 October 1999. The letter was sent to the Sussex Street address.
(s)On 10 November 1999, Ms. Qiao’s Bridging Visa E expired and she became an unlawful non-citizen.
(t)In December 2000, Ms. Qiao moved to Cairns without informing the Department.
(u)In January 2001, Ms. Qiao and Mr. Sleeth met at a dinner party in Cairns. Within the next few months a romantic relationship started between the two of them.
(v)In June 2001, Ms. Qiao and Mr. Sleeth began living together in a home unit in Cairns.
(w)During her time in Cairns, Ms. Qiao ran a business as a masseuse.
(x)On 23 July 2003, the Department became aware of Ms. Qiao’s location in Cairns. She was initially placed in Immigration Detention in Cairns and then transferred to Brisbane.
(y)Whilst in detention in Cairns, Ms. Qiao applied for a second Bridging Visa E. This application was refused on 28 July 2003.
(z)On 8 August 2003, Ms. Qiao made a supervised departure from Australia.
(aa)On 17 November 2003, Ms. Qiao and her former husband, Mr. Liang Xu, reached a settlement that Ms. Qiao would have custody of their son, Jie Xu.
(bb)On 24 December 2003, Mr. Sleeth and Ms. Qiao were married in Shanghai.
(cc)Ms. Qiao has no criminal record nor pending court proceedings in China or Australia.
16. The Tribunal received into evidence some information about Mr. Sleeth’s background and his health status. The Tribunal accepts the material as accurate and finds as follows:
(a)He is now 51 years of age.
(b)He served in the Australian Army from 1973 to 1979.
(c)He has a Commercial Pilots License.
(d)He has successfully completed courses in First Aid, Scuba Diving and many workplace health and safety courses.
(e)He has worked on oil rigs overseas and in various mining operations in Australia.
(f)His most recent occupation was as a laboratory technician at a copper mine in Far North Queensland.
(g)In July 2000, he was diagnosed with liver cancer. He has since undergone treatment with chemotherapy. The prognosis is uncertain, but his disease is certainly life threatening.
(h)He had never married before marrying Ms. Qiao. He has no children.
(i)During the time he lived with Ms. Qiao in Cairns, they held the following items in joint ownership:
·a new car bought in November 2001
·the lease of their unit
·a bank account
·the electricity account
(j)He has made financial arrangements for Ms. Qiao in relation to superannuation benefits in the event of his death.
(k)He and Ms. Qiao have been trying to have a child since November 2001. He has been undergoing fertility (sperm count) tests. It is thought that the chemotherapy may have affected his fertility.
(l)Since Ms. Qiao’s return to China, he has spent long periods with her in Shanghai. However, it is not possible for him to be permanently in China because of his need for ongoing medical treatment in Australia.
17. During their time together in Cairns, Mr. Sleeth and Ms. Qiao got to know a large circle of friends. Some of the friends have provided statements to the effect that Mr. Sleeth and Ms. Qiao were in a stable and loving relationship and that they were heavily involved in local community activities.
18. Ms. Qiao has been interviewed a number of times. On some of the contentious matters she has said:
·She had her own restaurant in Shanghai which she operated from about 1992 to 1997.
·When she left China she had no specific plans to stay in Australia. Her English was not good. She had learnt English at primary school.
·When she arrived in Australia she did not know the visa conditions.
·She thought that she would see if there were any business opportunities in Australia.
·She remained with the tourist group for about a week. During that time the group travelled to Melbourne for two days, during which she saw some penguins. They also travelled to Brisbane for two days. She remembers seeing a film studio.
·She had a friend who lived in Sydney. The friend invited her out to dinner. The tour leader was annoyed with her for wanting to travel independently of the group. He would not hand over her passport. She left the group and went to live at a home of a friend of her friend.
·She understood that if she applied for a Protection Visa she, as a Chinese citizen, would get favourable treatment from the Australian government. She thought there was some Australian government policy which was favourable towards Chinese. She had gained that impression from the lawyer handling her visa applications.
·In relation to her applications for Protection Visa, Bridging Visa and reviews by the RRT and the Minister, she put all of those matters in the hands of the immigration agent. Ms. Qiao does not know what was put on the application documents. She could not read English and the documents were never translated for her.
·She did not believe that she was doing anything wrong by working. She needed to earn money to live on. However, she had been told by the travel agent in China that she was not to work in Australia.
·She had a friend who lived in Cairns, who asked her to go to Cairns and live with her. She was aware that she had to notify the Department of her whereabouts.
·She started a massage business in Cairns. There was no sexual element to the massage – shoulders only.
·Before she left China she and her son lived with her mother and father. While she was in Australia her son lived with her parents. Her son has lived with her parents since 1992.
19. It was submitted on behalf of the Respondent that Ms. Qiao does not pass the character test provided for in s.501(6)(c)(ii), set out in paragraph 14 above, due to her past and present general conduct. In particular it was submitted that the following incidents indicate that Ms. Qiao is not of good character.
·Providing false and misleading information in her application for a Protection Visa and Bridging Visa.
·Breaching the condition 8101 (No Work) of her Bridging Visa C (subclass 030) issued on 29 July 1998.
·Breaching the following conditions of her Bridging Visa E (subclass 050):
8101 (No Work)
8505 (live at a specified address), and
8506 (notify change of address two days in advance)
·Residing in Australia as an unlawful non-citizen between November 1999 and July 2003.
20. There have been suggestions made to Ms. Qiao by various officers of the Department that she worked from time to time as a prostitute in Ryde and in Cairns. She has denied that she ever worked as a prostitute in Australia. No satisfactory evidence was placed before the Tribunal from which a finding could be made that Ms. Qiao worked as a prostitute in Australia. Consequently, I do not find that Ms. Qiao worked as a prostitute in Australia.
21. For completeness on the subject of prostitution, I note that there has been no submission on behalf of the Respondent to the effect that working as a prostitute reflects on Ms. Qiao’s character. It has been relevant only as to whether or not she has been working in Australia. In Ms. Qiao’s case there is clear evidence that she did work for remuneration in Australia, as a cook in a Chinese restaurant in Sydney and as a masseuse in Cairns.
22. I am prepared to accept Ms. Qiao’s explanation about the false statements which accompanied her application for a Protection Visa and a Bridging Visa. That is, that she put the matter in the hands of an immigration agent and trusted the agent to do whatever was necessary to obtain the visas and that she did not know the details of the claims made in the applications. I note that the various bodies who assessed Ms. Qiao’s application to remain in Australia did not accept the claim made on her behalf that she had been persecuted in China. The fact that she had been able to obtain a passport and visa and travel overseas, indicated to the Australian officers that she was not a person of any special interest to the Chinese government.
23. However, I take the view that Ms. Qiao joined the factory tour group in China with the plan to attempt to settle in Australia. I have formed that view from the following facts:
·She took photocopies of her passport before she left China. She would have known that the tour leader would keep her passport in his possession during the trip. She must have foreseen that she would need copies of her passport once she arrived in Australia, which means that she expected to become separated from the tour group at some stage.
·She left the tour group after about a week in Australia. She was contacted by a friend in Sydney and immediately had a place to go to. I believe that there must have been a pre-arrangement.
·She may not have known the precise details of her visa but she knew that she was not permitted to work in Australia and she knew that she was expected to return to China with the tourist group. She knew there was some time limit on her stay in Australia and that the time limit was well short of five years.
24. Even if Ms. Qiao did not initially know the precise details of the terms on which she was permitted to remain in Australia, she certainly did by the time she was detained at Villawood. She then knew that she was not permitted to work and that she had to keep the Department informed about her place of residence.
25. Ms. Qiao must have known by about November 1999, after the Minister had declined to intervene in her case, that her continuing presence in Australia was unlawful.
26. I take the view that when Ms. Qiao moved to Cairns in December 2000, she did so for the purpose of removing herself from Sydney to a reasonably remote location, but of sufficient size and ethnic mix to go unnoticed, for the purpose of remaining in Australia but below the Departmental radar.
27. Ms. Qiao attempted to migrate to Australia by circumventing the Australian legislation relating to immigration.
28. There is no suggestion by anyone that Ms. Qiao is an evil person. She does not appear to pose any threat to any Australian citizen. She has never been convicted of any crime. However, a course of conduct which sought to circumvent the immigration laws of Australia cannot be condoned. It involved a sizeable element of deceit and misrepresentation between Ms. Qiao and the Australian government officials who have the task of applying the rules to the individual cases.
29. Consequently, Ms. Qiao does not pass the character test in s.501(6)(c)(ii) of the Act.
30. The Tribunal nevertheless has the discretion within s.501 of the Act to determine that despite being satisfied that refusal to grant the visa is justified, the Tribunal should not exercise the power to refuse to grant the visa.
31. When exercising the discretion to decide whether or not Ms. Qiao should be permitted to re-enter Australia, the Tribunal is bound to take into account directions made by the Minister pursuant to s.499 of the Act:
“499 Minister may give directions
(1)the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers
(2A)A person or body must comply with a direction under subsection (1).”
32. The relevant direction made by the Minister in this matter is Direction 21, “Visa refusal and cancellation under section 501 of the Migration Act 1958” (the Direction). The relevant sections of the direction are as follows:
“PART 2 – EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
….
PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
The protection of the Australian community and members of the community;
The expectations of the Australian community; and
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.
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a) …
(b)genuine marriage to an Australian citizen…
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen.
(d) family composition of the non-citizen’s family, both in Australia and overseas;
….
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.”
33. The “Primary Considerations” listed in paragraph 2.3 of Direction 21 do not have significant relevance in this case. Ms. Qiao does not appear to pose any risk or threat to the Australian community. She has never been convicted of any crime. She does not appear to be a dangerous or violent person. She did attempt to circumvent the rules relating to immigration but her behaviour was not of the type outlined in paragraph 2.6(1) of Direction 21 which lists the more serious offences such as people smuggling, arranging contrived marriages and using false or forged documents. (I have already made a finding that she was not responsible for the misleading statements made by PC International on her behalf in her Protection Visa application.)
34. In my view Ms. Qiao does not present such serious character concerns such that the Australian community would expect that she not be granted a visa.
35. Although Ms. Qiao has a 15 year old son, this factor is not particularly important in this case. Her son has lived with his grandparents for 13 years since 1992. It would seem to me that he will not be unduly affected one way or the other in regard to where Ms. Qiao eventually resides.
36. I am satisfied that Mr. Sleeth and Ms. Qiao have a genuine, stable marriage.
37. I am satisfied that Mr. Sleeth has a life-threatening disease and that his emotional relationship with his wife, Ms. Qiao, has brought him a great deal of comfort in his adversity. It seems that she has been prepared to put a good deal of effort into his care and wellbeing.
38. I accept that Mr. Sleeth would be prepared to live in China with his wife but it is impossible for him to do so because of his serious medical condition. He will suffer extreme hardship if his wife is not permitted to live with him in Australia.
39. I find that there are significant compassionate circumstances which call for the granting of a provisional spouse visa to Ms. Qiao, which far outweigh any other considerations.
40. The decision under review is set aside and the matter will be remitted to the Respondent for reconsideration.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 16 December 2004
Date of Decision 29 June 2005
Applicant Mr. Sleeth, himself
Solicitor for the Respondent Clayton Utz
0
0
0