Ting and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 664

DECISION AND REASONS FOR DECISION [2002] AATA 664

ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION ) No. N2000/1172

Re      Jenny Ting
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent
DECISION

Tribunal Mr R P Handley

Date8 August 2002
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a Direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Carlson Hensley Ting.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Spouse provisional visa – character test – whether the Visa Applicant passes the character test – examination of the Visa Applicant's past and present general conduct – examination of visa malpractice – held that the Visa Applicant fails the character test on his past and present conduct – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the best interests of the Visa Applicant's children and hardship to his spouse against the expectations of the Australian community – held that the discretion should be exercised in favour of the Visa Applicant – decision under review set aside.
Migration Act 1958 ss 499, 499(1)(2), 501, 501(1), 501(6), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Re Leha and Minister forImmigration and Multicultural Affairs [2000] AATA 1054
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Vaitaiki v Minister for Immigration and Multicultural Affairs (1998) 150 ALR 608
Wan vMinister for Immigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

8 August 2002 Mr R P Handley

This is an application by Jenny Ting ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 26 June 2000 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Carlson Henley Ting ("the Visa Applicant").
At the hearing, the Applicant was represented by Richard Killalea, of Counsel, and the Respondent was represented by Greg Peek, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given in person by the Applicant and by conference telephone by the Visa Applicant, Joseph Iruthayam and Cheah Yew Aik, (Frankie).
Background
The Applicant, Ms Ting, was born in Saigon on 6 June 1972 and is aged 30. She migrated to Australia with her family arriving on 20 December 1979 and became an Australian citizen on 19 May 1983. The Visa Applicant, Mr Ting, was born in Singapore on 1 May 1957 and is aged 45. Mr Ting is a citizen of Singapore, currently living in Malaysia. Mr and Ms Ting were married in Singapore on 15 July 1993 and have two children, Carolyn, who is aged 9, and Jonathan, who is aged 6.
Mr Ting first entered Australia on 29 April 1989 and was granted a temporary entry permit until 29 May 1989. On 25 May 1989, he applied for an extension to this permit and an extension was granted permitting him to stay until 6 July 1989. Mr Ting did not, however, leave Australia by that date but remained here unlawfully until when, during an amnesty for illegal residents during 1990, on 4 July 1990, he applied for an extended eligibility temporary entry permit. This application was refused on 18 October 1990 and Mr Ting was notified of this decision by letter dated 10 December 1990 (T17).
Meanwhile, in July 1990, Mr Ting met Thuc Quan Ly, the daughter of a friend, and, on 29 September 1990, Ms Ly and Mr Ting were married. On 8 October 1990, Mr Ting lodged an application to remain permanently in Australia based on his marriage to Ms Ly. On 19 December 1990, Mr Ting made a statutory declaration (T18), stating his "marriage was not conceived for the purpose my obtaining permanent resident". Mr Ting sought to change his previous application for an extended eligibility temporary entry permit to an application to remain permanently in Australia based on his marriage. No separate application fee was paid in respect of Mr Ting's application for permanent residence on this basis.
By letter dated 4 February 1991 (T19), Ms Ly notified the Department that the marriage had been one of convenience and, by letter dated 25 February 1991 (T20), Ms Ly notified the Department of the withdrawal of her previous support for her husband's application for permanent residence. Ms Ly asserted in these letters that Mr Ting had started seeing another woman, Jenny Hua, about a month after the marriage. In the later letter, Ms Ly said Mr Ting and Ms Hua were living together.
Mr Ting met Ms Hua in October 1990. Her parents disapproved of the relationship which was initially that of boyfriend and girlfriend, and took Ms Hua to Hong Kong departing Australia on 8 December 1990 and returning on 30 January 1991. However, her relationship with Mr Ting resumed in February 1991 and she moved in with him and they commenced a de facto relationship. On 16 March 1991, Ms Hua's father, Lee Hua, made a statutory declaration (T21, p131/132) describing an argument he had had with Mr Ting on 1 February 1991 when he found Mr Ting and his daughter together.
By letter dated 22 October 1991 (T24), the Department notified Mr Ting that because no application fee had been paid in respect of his application for permanent residence, the application was invalid, he was now an illegal entrant and "must make immediate arrangements to depart Australia". On 25 October 1991, Mr Ting spoke to a departmental officer (T25) concerning his application for a new travel document to enable him to return to Singapore. On 18 November 1991, the Singapore High Commission in Canberra issued Mr Ting with a temporary travel document (T29) to enable him to return to Singapore, and he and Ms Hua departed for Singapore on 20 November 1991.
Initially, Mr Ting worked in Singapore. In early 1993, Mr Ting set up his own business in Malaysia installing and maintaining tenpin bowling centres and equipment. While he lived mostly in Malaysia, Ms Hua remained in Singapore, where her first child, Carolyn, was born on 10 March 1993. On 26 March 1993, a Decree Absolute dissolving Mr Ting's marriage to Ms Ly took effect (T32) and, on 15 July 1993, Mr Ting and Ms Hua were married in Singapore. The couple's second child, Jonathan, was born on 6 February 1996. Ms Ting and the two children continued to be based in Singapore but they visited Mr Ting in Malaysia on a regular basis and he visited them monthly in Singapore.
On 11 February 1999, Ms Ting returned to Australia with their two children in order that their daughter, Carolyn commence her education in Australia. Mr Ting applied for a visitor visa for Australia in Singapore, which was refused on 10 February 1999 (T33) and made a second application for a visitor visa in Kuala Lumpur which was refused on 3 March 1999 (T35). On 9 March 1999, Mr Ting lodged an application for a subclass 309 visa in Kuala Lumpur.
On 5 October 1999, both Mr and Ms Ting were interviewed at the Australian High Commission in Kuala Lumpur. Mr Ting admitted that his first marriage was one of convenience and that he had paid his wife's father "a few thousand dollars to help the family" (T p216). He also admitted to remaining in Australia unlawfully and to working without permission. During the course of the interview, the migration officer put to Mr Ting that there were outstanding criminal charges against him in Australia. He denied being aware of this but stated that he had reported a crime involving the forgery of US travellers' cheques to the US authorities in Singapore. This concerned an approach made to him in Australia to buy counterfeit US travellers' cheques. Mr Ting had then spoken to an Australian Federal Police ("AFP") officer in Singapore about the matter and was later interviewed by Australian police in Singapore when he made a video-taped statement. A police certificate issued by the AFP on 1 November 1999, shows pending charges against Mr Ting for "conspiracy" and "possess false instrument". A certificate dated 5 April 1999 (T38) issued by the Criminal Investigation Department in Singapore states that Mr Ting has no criminal record in Singapore.
On 26 June 2000, a delegate of the Respondent at the Australian High Commission in Kuala Lumpur refused Mr Ting's application for a spouse visa (T p63). The delegate stated that Mr Ting did not pass the character test by reason of his past and present general conduct and, further, the delegate declined to exercise his discretion not to refuse the grant of a visa. On 31 July 2000, Ms Ting lodged an application with the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
Under s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This 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".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Ting is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Carlson Hensley Ting (the Visa Applicant)
Mr Ting was referred to an undated statement he made in relation to these proceedings (A1). He said he left Australia in November 1991. He has subsequently discovered that a number of traffic offences were recorded against him in 1992, although he could not have committed these offences because he was not in Australia at the time. He thinks the offences may have been committed by a friend with whom he left a car which was registered in his name.
Mr Ting said he originally came to Australia with a view to possibly establishing a seafood business here. He told the Department of Immigration of this when he applied for an extension of his initial visa. He had previously run his own seafood business in Singapore but, at that time, business was not good. Mr Ting said that he started to work in Australia in about May 1989 and was aware that after the extension of his visa expired in July 1989, he was remaining in Australia and working here unlawfully. He stayed on because he ran out of money and decided he would earn some money and then re-apply for a visa from overseas. Initially, he had various casual jobs, including helping in a business belonging to a friend. At the time of the amnesty for those in Australia unlawfully in 1990, he helped a number of people in the Chinese community completing their application forms and charged them for his travelling costs related to the lodging of their applications, amounting to between $100 and $200 depending on how much travelling was involved. With R & J Tyre Services, for whom he worked between August 1990 and September 1991, he was not really an employee because he was a shareholder in the business. However, he helped out from time to time as required. This business included car repairs. Mr Ting acknowledged that the incident involving an argument with his now father-in-law occurred at R & J Tyre Services' workshop.
With regard to his first marriage, Mr Ting said his friend had suggested that Mr Ting should marry his daughter to assist Mr Ting in staying in Australia. The daughter consented to marry him on the basis that if the relationship worked out, then all well and good; otherwise, they would divorce. Mr Ting said he and his first wife, Ms Ly, although living in the same house, did not live together as husband and wife and did not sleep in the same bed. They were more girlfriend and boyfriend. However, Ms Ly still wanted to go out with other men. Mr Ting met Ms Hua at a family dinner in October 1989, about three weeks after his first marriage. Mr Ting said that, by then, it was clear to him that his marriage had already ended. He had already paid his friend a few thousand dollars to help the family out with money, but his friend kept asking him for more money. When Mr Ting and Ms Hua started dating, Ms Hua was still in her final year at school. Her parents did not approve of the relationship, saying that he was too old for her.
Mr Ting said he had made an application for permanent residence about a week after his first marriage. He had previously made an application to remain in Australia on economic grounds under the amnesty for those here unlawfully ("the first application") but he did not have much hope that that application would be successful. He was not aware when he made his application for permanent residence based on his marriage ("the second application"), that his first application had been refused nor that he had to pay a further application fee. He was only notified that his second application had been refused in about July/August 1991, when he was informed that he had to report to the Department. Mr Ting said he did not receive the letter dated 10 December 1990 sent to Mr Smyth refusing his first application on economic grounds. He did not contact his solicitor until about August 1991 which was second application, he hoped the Department would not find out about the breakdown of that marriage. He acknowledged that he did not inform the Department that the relationship with his first wife had ended and that he was living with Ms Hua. He also acknowledged that a statutory declaration he made in 1990 that his marriage was not entered into in order to obtain permanent residence was a lie.
Mr Ting indicated that it was because of his having a share in the business, R & J Tyre Services, that he became exposed to criminal activity involving forged US travellers' cheques. His partner in the business was involved in the activity and Mr Ting wanted to protect his share in the business. His only involvement in the activity was as a contact point providing contact details to others. Mr Ting said he was not aware before he left Australia that a particular criminal operation had been planned. He said about a month after leaving Australia on 20 November 1991, he went to report the matter to the US Embassy. An officer from the Embassy took him to meet a police liaison officer at the Australian High Commission whom he told what he knew about the criminal activity. The liaison officer, Steve Flagg, told him that the criminal gang had been arrested but he was never given any indication that he might also be charged. He was asked to provide information to the Hong Kong Police when he was next there, which he did, providing them with all the information of which he was aware.
In 1994, at the request of the Australian Police, Mr Ting said he returned to Singapore for an interview with investigating officers from Australia and made a statement which was also video-taped. He acknowledged that there was some discussion about whether he might be charged but he never heard any more about this afterwards and assumed that no more would come of it. It was not until his interview at the Australian High Commission in Kuala Lumpur in 1999, that he discovered that he had been formally charged.
Mr Ting said he wants to return to Australia to clear his name. He understands that he will be taken into custody on arrival in relation to the outstanding charges and hopes that he will then be granted bail. He also understands that he could be liable to imprisonment in respect of the charges and that if he is sentenced to a prison term of 12 months or more, this could result in any spouse visa which he is granted being cancelled and to his being deported. Mr Ting said he left it until 1999 to apply for a spouse visa, to enable him to save money in Malaysia with a view to buying a house, car etc on their return to Australia. He denied delaying returning "to allow things to settle down". However, he acknowledged that he was told in 1991 that he should allow between two and five years before lodging a new application. When completing his 1999 visa application, he did not include details of the criminal matters in his application because he was not aware he had been charged and because he was told that reference to such matters would not assist his visa application. Mr Ting said that if he comes to Australia and is able to clear his name, he then hopes to start a similar business to that which he is running in Malaysia in installing and maintaining tenpin bowling centres. Initially, he intends to try and continue operating his Malaysian business as well, although he might sell this later on. Essentially, he wants to return to Australia to be with his family. He loves his children and misses them very much. He speaks to his wife and children everyday by phone and, hopefully, they will be able to come to Malaysia for the school holidays to be with him.
Mr Ting said his wife and children returned to Australia in February 1999 with a view to his children being educated in Australia. He and his wife prefer the education system in Australia to that in Singapore and his daughter was due to start school at the beginning of 1999. Mr Ting supports his wife and children financially. When they returned in February 1999, he gave his wife about Aus$5,000 and he provides her with money to take back on each visit to Malaysia. He was unable to estimate how much money he has provided to his wife since she returned to Australia. He acknowledged that she had received social security benefits in Australia. He said what money he can give to her is dependent upon how his business is doing at the particular time. Since commencing his business in 1993, he has constructed 37 bowling centres. Each installation takes between one and two months and the contract values range between Aus$50,000 and Aus$175,000. He employs about 15 people for each major installation. Ms Ting was asked about his referees, Mr Ean, his Accountant, and Mr Aik, a long standing personal friend. Mr Ting said he had told them about his earlier marriage of convenience in Australia, and, as a result his having overstayed and worked without permission, and they are aware of the legal charges outstanding against him.
Jenny Ting (the Applicant)

Ms Ting said she was introduced to her husband by his ex-wife at a restaurant where their families were having dinner. She thought this was about three or four weeks after her husband's first marriage. She was in her final year at school at that time, finishing her HSC. Her relationship with Mr Ting was at first that of boyfriend and girlfriend. Her parents did not approve of the relationship and even took her away to Hong Kong for about a month to get her away Mr Ting. However, not long after they returned from Hong Kong, her parents had a confrontation with Mr Ting and, as a result, Ms Ting left home and moved in with him.
Ms Ting said that at the time she and her husband met, he had already applied for a spouse visa based on his first marriage. She did mind him doing this but wanted him to re-apply on the basis of his relationship with her. Her husband told her that after he and Ms Ly were married, she wanted to go out every night and did not treat him as a husband. Ms Ting said she thought her husband did originally want to settle down and have a family but it quickly became clear that this was not going to happen. Ms Ting said that her parents wrote to the Department of Immigration making various allegations against her husband. Her parents have only just started reluctantly accepting him as her husband but they still would not be prepared to provide him with any assistance in relation to this visa application.
Ms Ting accompanied her husband to Singapore in November 1991 and lived in Singapore until she returned to Australia with her children in February 1999. To enable her daughter to start school. She and her husband prefer the education system in Australia because in Singapore the children must be able to speak Mandarin as well as English which is the first language. However, Mr and Ms Ting's children speak English and Cantonese and, while they can speak Mandarin, they are not literate in it. Ms Ting said that, at home, she and her husband speak English with the children.
Ms Ting said that in 1993, her husband moved to Malaysia to start his business while she remained in Singapore to have her first child. She continued to maintain a home in Singapore where her son was also born and her husband would come to Singapore once a month for a few days to see them and they would go to visit him in Malaysia, where they also had a home, during the school holidays.
Ms Ting said she and her husband were married shortly after his divorce came through. They did not plan to try and return to Australia immediately because of her husband's business in Malaysia. They had also been told by the Department of Immigration that it would be easier for her husband to apply for a spouse visa from Singapore.
Ms Ting said that if her husband is not granted a visa, she does not know what she will do. She cannot live in Singapore because her sister-in-law has said that Ms Ting cannot stay with her any more and, with regard to Malaysia, her children do not have permanent residence there. She and her husband have planned for him to come to Australia, although she understands that he will have to answer the criminal charges on arrival and he faces the possibility of a prison sentence which could result in any visa which he is granted being cancelled. Ms Ting said that her husband had applied for visitor visas in both Singapore and Malaysia but these had been refused.
Ms Ting is aware of the problems involving the police dating from 1991. She was with her husband in Australia at the time of the incident involving the false traveller's cheques which he told her about. A person from Thailand had showed her husband some false travellers' cheques. She advised him not to have anything to do with the cheques because they were illegal. She said there was a gang of organised crime members and her husband could not escape involvement unless he left the country. Any involvement he had was because he had no choice. They would phone him to ask for information about whether things had arrived. Ms Ting said her husband was not aware that false cheques were being sent. She and her husband left the country so that he could avoid any further dealings with the gang and, in any event, he had been informed by the Department of Immigration that he must leave, his visa application having been refused. Her husband went to report what had happened in Singapore because he knew that he had been involved in something which was wrong.
Ms Ting said that since she returned to Australia in February 1999, her husband has been providing her with some financial support. He sends her money when he has work and when he can. When she and the children go to visit him two or three times a year in Malaysia, she usually brings money back with her. When she and the children returned to Australia in February 2002, she brought back about $4,000 with her. Ms Ting acknowledged that she has been on Social Security benefits from time to time since February 1999.
Ms Ting said her husband intends to establish a bowling lane business in Australia similar to that he has been operating in Malaysia. She is not sure what he will do with his Malaysian business but thinks that, ultimately, he may sell it.
Joseph Iruthayam
Mr Iruthayam is a solicitor and advocate of the High Court of Malaya who provided a reference for Mr Ting dated 1 July 2002 (A5). Mr Iruthayam said that Mr Ting has been a client of his for some years in relation to legal work for his business of constructing bowling centres. Mr Iruthayam said when he is doing work for Mr Ting, they usually meet once or twice monthly. In his view, Mr Ting is a person of integrity and Mr Iruthayam is not aware of his being involved in any misconduct. Mr Ting had told him about the pending criminal charges in Australia. Mr Iruthayam doubts Mr Ting's involvement in such activity and believes he is innocent of the charges referred against him.
Cheah Yew Aik (Frankie)
Mr Aik is the Managing Partner of the accounting firm which acts for Mr Ting, although he is not himself a qualified accountant. Mr Aik first met Mr Ting when Mr Ting was representing Singapore in a bowling championship and he was representing Penang. They have been personal friends since 1983 and his firm have acted for Mr Ting since about 1992.
Mr Aik said Mr Ting is a very nice person and would not be involved in anything criminal. He is very careful and would resist pressure to be involved in criminal activity. Mr Aik cannot therefore believe that Mr Ting would be involved in criminal misconduct involving travellers' cheques. Mr Ting has told him about these charges. Mr Aik is also aware of Mr Ting's first marriage and that he entered into this marriage in order to try and gain permanent residence in Australia.
Submissions
Applicant
Mr Killalea, for the Applicant, said Mr Ting acknowledges that he overstayed his visa in 1989 and entered into a marriage of convenience in September 1990. From the second half of 1990, Mr Ting kept the Department informed of his whereabouts as a result of various visa applications to enable him to stay in Australia legally and, after Mr Ting received the Department's letter of 22 October 1991 (T24), Mr Ting contacted the Department within a few days with a view to making arrangements to depart Australia. Initially, Mr Ting was held up in this by his need to obtain a new travel document. Mr Killalea submitted that Mr Ting is of good character but that if he is not found to be then the s 501(1) discretion should be exercised in his favour.
With regard to the criminal charges, Mr Killalea said that Mr Ting is prepared to return to Australia to face the charges in order to clear his name. He was not aware until the interview at the High Commission in Kuala Lumpur in October 1999 that charges had, in fact, been laid against him. This is why he did not refer to those charges in his spouse visa application. Mr Ting is aware that the charges are serious, that bail might not be granted, and that he may possibly face a prison sentence which, if more than 12 months, could mean that any visa granted could be cancelled with the consequence being that Mr Ting would be deported. Mr Killalea said that the fact that Mr Ting is prepared to face these possibilities speaks to his good character. He has voluntarily provided Australian authorities with information about these matters from late 1991. The criminal activity was undertaken by a gang and it seems clear that Mr Ting was somewhat afraid of that gang. He left Australia, in part, to get away from that situation, which coincided with his need to leave Australia after notification that his visa application had been refused. Shortly after arriving back in Singapore, he volunteered his assistance to the Australian police. Mr Killalea submitted that Mr Ting has presented as a person of good character in relation to these matters and is entitled to the presumption of innocence until he has had the opportunity to clear his name. There is no evidence that Mr Ting ever sought to evade criminal charges in Australia as alleged by the Respondent.
With regard to paragraph 1.10 of Direction No 21, Mr Killalea submitted that this paragraph is invalid to the extent that it attempts to define character. He contended that it is not within the power of the Minister to use subordinate legislation to change established legal concepts, noting the concept of good character discussed in Goldie the Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 which has been applied in cases such as Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192. Mr Killalea said that the concept of good character set out in Goldie (supra) does not require a spotless character, but one which is not so deficient in enduring moral qualities to show that it is for the public good to refuse entry.
While acknowledging that he over-stayed after July 1989, the Applicant made a series of applications in 1990 in an attempt to regularise his immigration status in Australia. With regard to his first marriage, this should better be described as an "arranged marriage" because Mr Ting's evidence is that while the marriage was arranged, it might have worked. However, Ms Hua wanted to continue going out with her friends. Mr Ting has openly acknowledged what he did and has not pretended remorse. Mr Ting has also provided assistance to the Australian authorities with respect to the criminal matter and has always expressed his willingness to return to Australia to answer the charges made against him. His character referees have given evidence as to his good character in full awareness of his background in Australia. Mr Ting is an enterprising and industrious person and likely to be of benefit to the Australian community. He and Ms Ting have been together since 1990 and Ms Ting returned to Australia in order to provide a good education for their children.
Respondent
Mr Peek, for the Respondent, submitted that Mr Ting was involved in a systematic course of misconduct in seeking to gain permanent residency in Australia. He remained in Australia unlawfully after his extended entry permit expired in July 1989 and he worked without permission. He entered into a contrived marriage for the purpose of gaining permanent residence in Australia and paid money to his first wife's father. He made a statutory declaration dated 19 December 1990 (T18) in which he falsely stated that his marriage was not conceived for the purpose of his obtaining permanent residence. Mr Peek noted that offences concerning arranged marriages carry serious penalties under the Act. For example, s 243 makes it an offence for a person to apply for a visa on the basis of a marriage which is not genuine, punishable by imprisonment for two years.
With regard to Mr Ting's alleged involvement in criminal conduct, Mr Peek noted that Mr Ting spoke with Australian Federal Police liaison officers in 1994 at a time when charges had already been laid against him. Mr Peek invited the Tribunal to examine the confidential material provided to the Tribunal under s 503A of the Act and compare this with Mr Ting's account. The Tribunal should consider the application of paragraph 1.10 of Direction No 21 in determining whether Mr Ting is of good character. Amongst other matters paragraph 1.10 requires the Tribunal to consider any countervailing factors. Mr Peek noted that Mr Ting has not expressed remorse for his actions and that this suggests a failure to appreciate the significance of the dishonesty of his conduct according to the standards of the Australian community.
With regard to the exercise of the discretion under s 501(1) of the Act and the guidance provided to decision-makers by Direction No 21, Mr Peek submitted that the primary considerations identified, namely the protection of the Australian community and the expectations of the Australian community, support the discretion not being exercised in Mr Ting's favour. With regard to the third of the primary considerations, the best interests of the children, Mr Peek noted in his statement of facts and contentions that Ms Ting has taken the children to see their father in Singapore/Malaysia on a regular basis since February 1999. In any event, since the children are dual Australian and Singaporean citizens there is no impediment to their residing in Singapore nor any apparent hardship in their returning to live there. There is also no apparent impediment to Ms Ting and the children seeking permanent residence in Malaysia to enable them to live with Mr Ting. Mr Peek noted that for many years the family have been used to longish periods of separation as a result of Mr Ting working in Malaysia, even when Mr Ting and the children were living in Singapore.
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Ting passes the "character test" having regard to his past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie (supra), 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 Re Msumba (supra), 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 (Godly 1999 FCA 1277).

Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Ting does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 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(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen 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)).
Paragraph 1.10 states:
In addition to the above matters, a non-citizen, is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to:

whether there is a pattern of conduct relating to the applicant (e.g. similar charges in the past, other criminal behaviour; and/or the seriousness of the offence with which the applicant has been charged or
(b)resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

Mr Ting admits that when the extension to his original visa expired on 6 July 1989, he remained in Australia unlawfully until applying for a Processing Entry Permit on 4 July 1990. He also acknowledges that he worked without permission. Then, on 29 September 1990, Mr Ting entered into what he referred to as an "arranged marriage" with the daughter of a friend in order to facilitate his obtaining permanent residence in Australia. Mr Ting's evidence is that he had previously met his friend's daughter and that she had agreed to the marriage. Mr Ting said that if the relationship worked out, then "all well and good". Otherwise, they would later divorce. However, within a few weeks of the marriage, it was clear to Mr Ting that the relationship was not going to work because his wife, Ms Ly, continued to go out with other men.
Mr Ting acknowledged that he had made payments of a few thousand dollars to Ms Ly's father to help him out, but resisted continuing to make such payments when the father made further demands. Mr Ting also acknowledged that on 19 December 1990, he made a false declaration concerning his marriage, stating that "our marriage was not conceived for the purpose my obtaining permanent resident".
The Respondent referred the Tribunal to paragraph 1.10 of Direction No 21 in relation to the outstanding criminal charges against Mr Ting. The Tribunal finds these charges - "conspiracy" and "possess false instrument" - were laid on 21 October 1994. Mr Ting's evidence is that, having provided information to the Australian authorities in December 1991/January 1992, he was interviewed again by Australian police in Singapore in 1994 when he provided a written statement and video evidence. It is not clear whether this later interview took place before or after the charges were laid, but Mr Ting's evidence is that he was not informed at any time that charges had been laid, although the possibility of this had been discussed. He said he told the investigating officers that he was willing to return to Australia to stand trial if required, but on his further inquiry to the liaison officer in Malaysia, he was informed that the case was over, that those who were involved had been sentenced, and that there was no information about his returning to Australia to stand trial. He therefore assumed that the matter had been concluded. Mr Ting said that he heard nothing more until his interview at the Australian High Commission in Kuala Lumpur on 5 October 1999 when he was informed that there were outstanding charges against him.

Paragraph 1.10 of Direction No 21 applies where the conduct of the non-citizen has resulted in offences that are the subject of charges. The Tribunal is not reasonably satisfied on the basis on the evidence before it that Mr Ting's conduct resulted in the unresolved charges. While the charges are serious ones, there is no evidence of any pattern of similar prior conduct and the countervailing factors of which the Tribunal must take account is Mr Ting's having volunteered information to Australian authorities in Singapore in December 1991/January 1992 and having Mr Ting's evidence to the Tribunal was that he was not involved in the criminal conduct except to the extent that he unwillingly provided some contact information to others. Part of the reason for Mr Ting's wishing to return to Singapore in November 1991, was his desire to remove himself from a situation where he felt under pressure as a result of the activity of criminal gangs in Cabramatta. In the Tribunal's'' view, the outstanding criminal charges are not sufficient, in themselves, to justify a determination that Mr Ting is not of good character. However, his conduct in overstaying and working without permission and in relation to the arranged marriage, are sufficient to found a determination that he does not pass the character test by reason of his past and present general conduct, pursuant to s 501(6)(c)(ii) of the Act. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether or not to refuse the grant of a visa to Mr Ting.
In exercising this discretion, the Tribunal had 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.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

With regard to the protection of the Australian community, paragraph 2.4 states:
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…

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include:

arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; … or making a false or misleading statement in connection with entry or stay in Australia.

Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
With regard to this first primary consideration, the Tribunal has found that Mr Ting overstayed his visa and was in Australia unlawfully and working without permission, and that he entered into an arranged marriage with a view to obtaining permanent residency. He also made a false statutory declaration that his marriage was not conceived for the purpose of obtaining permanent residency. While such matters are regarded as serious by the Australian community, the Tribunal notes that they took place approximately 12 years ago and, given Mr Ting's subsequent history, and taking into account the evidence of his referees as to his good conduct, in the Tribunal's view, the risk of his repeating such misconduct is minimal. The Tribunal acknowledges, nevertheless, that the refusal of visa where a person has been guilty of immigration misconduct is likely to have a deterrent effect on others who may be contemplating such misconduct.
The second primary consideration is the expectations of the Australian community. Paragraph 2.12 states there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal's view, remaining in Australia unlawfully and working without permission are serious matters, as is entering into an arranged marriage with a view to obtaining permanent residency. Nevertheless, the Tribunal notes what Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054, of the relevant paragraph in Direction No. 17 which is expressed in identical terms in paragraph 2.12 of Direction No. 21:
Paragraph 2.12 (of Direction No 17) gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely. This view has been cited with approval by the Tribunal in other cases, for example, in Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74.

In Mr Ting's case, the Tribunal is of the view that the Australian community would take a humane view by reference to the other considerations in this matter.

The third primary consideration is the best interests of the child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan (supra) at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, "to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration".
The Tribunal finds that both Ms Ting and her two children are Australian citizens and are living in Australia. They returned to Australia from Singapore because Mr and Ms Ting believed that the education they would receive in Australia would be preferable to that in Singapore. In particular, neither child is literate in Mandarin, one of the languages of instruction in Singapore, owing to Mr and Ms Ting speaking English at home with their children, although the children are also able to speak Cantonese. Ms Ting and the children have been resident in Australia since February 1999 and the children appear to be well settled in school. However, the Tribunal notes that Ms Ting and the children have visited Mr Ting in Malaysia on average about twice a year since they returned to Australia. While the children were born in Singapore and have dual Singaporean citizenship, Ms Ting's evidence is that they do not have permanent residency in Malaysia. However, there was no evidence that they would not be able to obtain this if an application were made. Nevertheless, the Tribunal notes that Ms Ting's parents and siblings are all in Australia and, on balance, finds that the children's best interests will be served by Mr Ting being granted a visa to enable the family to be reunited in Australia.
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; the non-citizen's business and other ties to the Australian community; 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; family composition of the non-citizen's family, both in Australia and overseas; the likelihood of the non-citizen seeking to evade any outstanding legal matter; and any evidence of rehabilitation and any recent good conduct.
There is no dispute that the relationship between Mr and Ms Ting is a genuine marital relationship. The Tribunal finds that Ms Ting was aware of the difficulties concerning Mr Ting's immigration statement before their marriage. They lived in Singapore and Malaysia for some years before Ms Ting returned to Australia in 1999 to enable their children to undertaken their primary school education here. The Tribunal finds that Mr Ting is the owner of a company installing and maintaining bowling allies in Malaysia. The evidence of his referees is that he is a business person of good reputation. The Tribunal has found above that he volunteered information to the Australian authorities concerning the criminal conduct involving forged American travellers' cheques in December 1991/January 1992 and gave further written and oral statements about this matter in 1994. Mr Ting said at that time and continues to say that he is willing to return to Australia to face any such charges, although he denies knowing anything about such charges at the time he applied for the subclass 309 visa on 9 March 1999. He only became aware of the outstanding charges during the course of his interview at the Australian High Commission in Kuala Lumpur on 5 October 1999. He is aware that if he were to be convicted of such charges and receive a prison sentence of more than 12 months, then he would be liable for deportation by order of the Minister.
Mr Ting's evidence is that if he were granted a visa, he would remit his savings to Australia to enable he and Miss Ting to purchase a house, car and other necessaries. He also proposes to establish a business similar to that which he operates in Malaysia undertaking the installation and maintenance of bowling allies. Certainly, the impression formed by the Tribunal from his evidence is that he is of an entrepreneurial nature. The Tribunal accepts that the separation of Mr Ting from his family is causing both him and them hardship and there is evidence among the file documents that Ms Ting has been suffering from depression as a result of the separation (T59). Weighing up the primary and other considerations, in the Tribunal's view, the best interests of Carolyn and Jonathan Ting outweigh any need for the protection of the Australian community, which is of minimal concern in this case. With regard to the expectations of the Australian community, the Tribunal's view is that the Australian community would take into account Ms Ting's and her children's situation, as well as that of Mr Ting, and would view that situation humanely, albeit noting that there has been a breach of trust by Mr Ting and, furthermore, that he may have to face criminal charges on his return to Australia. Nevertheless, the evidence before the Tribunal does not persuade the Tribunal as to his culpability and the Tribunal considers that he should be permitted the presumption of innocence and given the opportunity to face charges if these are to be pursued.
Thus, the Tribunal concludes that the discretion not to refuse the grant of a visa under s 501(1) of the Act should be exercised in favour of Mr Ting, and, therefore, sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  17 July 2002
Date of Decision  8 August 2002
Representative for the Applicant              Mr R Killalea, Counsel
Representative for the Respondent        Mr G Peek, Solicitor