Wan and Minister for Immigration and Multicultural Affairs - [2000] AATA 685

DECISION AND REASONS FOR DECISION [2000] AATA 685

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N00/298

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LEI WAN
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date10 August 2000
PlaceSydney

Decision       The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
MIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – whether applicant not of good character – criminal offences – employment of illegal workers - reckless indifference to whether or not migration provisions were observed by employees over whom applicant had management responsibilities – overstaying of visa – making of false statements to immigration authorities – applicant not of good character – discretion should not be exercised in applicant's favour – primary consideration outweighs other considerations.

Migration Act 1958 – ss 235, 499, 501.

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review the refusal of a spouse visa to the applicant on 24 May 1999. The refusal was given prior to the amendment of section 501 of the Migration Act 1958. It was based on grounds appearing in the earlier version of that section, namely that the Minister was not satisfied that the applicant was of good character, having regard to his past criminal conduct, or to his general conduct.
The applicant was born in the People's Republic of China on 26 April 1966. He entered Australia on a student visa on 3 January 1990 which was valid until 22 July 1990. He has been in this country continuously since that time and has worked for lengthy periods from time to time, notwithstanding the terms of his expired permit and various visas.
He met the woman who was to become Mrs Wan in July 1990 at the International Language School in Melbourne, where they were both students. They began a relationship at the end of 1990.
Some four months after his temporary entry permit had expired, Mr Wan lodged an application for refugee status in Australia on 8 November 1990. By that time, he had been in this country over 10 months. They began to live together in early 1991. Around May 1992, the relationship suffered a temporary fracture when the future Mrs Wan moved out without letting the applicant know of her whereabouts. He then started seeing another girl called Shirley Tan in about October 1992 and continued that relationship until January 1993.
On 8 December 1992, Mr Wan was located by Victorian Police working in a massage parlour at 10 Chapel Street, Prahran. The arresting officer claimed that Mr Wan had offered him a naked female worker to provide him with a massage. Mr Wan has consistently denied this conversation. He also denied that he was working at the premises, saying that he had simply been there to talk to the proprietor, Jane King, as she had arranged for bail to be paid on his behalf when he was charged with criminal offences. The alleged conversation is irrelevant to the issues to be determined in this application except that if true, it indicates that Mr Wan was in fact working at the premises. Having regard to other evidence, particularly relating to the physical enforcing which he carried out on behalf of that proprietor, I consider it more probable than not that he was in fact working at this massage parlour. The enforcement action which he took led to the commission of criminal offences for which he was prosecuted.
These offences arose from another occasion when he was apparently acting to assist Jane King, whose employees had been importuned by one David Zhao, the proprietor of a similar business. Mr Wan said he was called to Jane King's office where he found himself in a scuffle with David Zhao. Subsequently, with a gang of helpers, he then went to Zhao's premises where he seriously assaulted Zhao and his wife and damaged their property. He was subsequently charged with these offences and was convicted on 9 March 1994 in the County Court. The facts as found by the Judge Ross were as follows:
"Lei Wan, you were convicted by a jury of one count of intentionally and recklessly causing injury to Xiaoyun (Angela) Wang, and one count of intentionally causing serious injury to Yong (David) Zhao. Further, at the commencement of proceedings you pleaded guilty to one count of wilful damage. Your counsel at that time also indicated your willingness to plead to a count of intentionally cause injury to David Zhao, and your counsel reminded me that on the trial the defence concentrated solely on the issue of serious injury, and with that submission I agree.
I think it is proper to acknowledge these factors in the sentencing process, however, the fact remains that you did not plead guilty to a charge of which you were convicted and the discount for that pretrial indication cannot fully equate with an unqualified plea of guilty to the count on which you were convicted.
Your conduct follows a visit by David Zhao on Sunday, 11 October 1992 to premises in Carlton at which I was told traditional massage, Chinese massage, was practised. You had some interest in the business and whatever one's doubts may exist about the legitimacy of the business conducted on the premises, it seems clear that Zhao made overtures to a woman working at your premises requesting her to come and work for him at a Chinese massage parlour that his wife Angela conducted at 217 Punt Road, Richmond. It appears that Zhao had an interest in this establishment.
This approach to one of your women prompted you to confront David Zhao at his massage premises at 217 Punt Road, Richmond. A fight ensued between the two of you, blows were exchanged, and it seems you left with some minor injury in the vicinity of an eye. These matters before the court arise from as a result of your return to those premises on the following evening. You arrived with two cohorts, gained entry to the premises and immediately made your violent intentions apparent. Your quarry was David Zhao. However, Angela Wang happened to be in the passageway, she was forcibly held to prevent her impeding you in your designs, doors were smashed in a most alarming fashion, and David Zhao in genuine fear for his safety existed the premises through a front window. Two terrified females tried to leave through the back door. Upon becoming aware that David Zhao had left the premises, you Lei Wan, also left.
Some short time thereafter you saw him and chased him in Punt Road, and your two companions followed in a car. Thereafter the three of you cornered him and gave him a quite cruel beating.
David Zhao said, "They hit me for some time. The blows seem to come at the same time. Initially they seemed to target my head, or parts of my body, on my leg, but they used their legs to hit me. One of the Australian boys used his knee to hit me and as a result of it I lost one tooth."
This is an account of very violent and disturbing behaviour. Apart from the damage to the tooth and potential for further dental problems it is true as your counsel put it, that your victim suffered no long term physical consequences, but in my view that is not the result of any restraint on the part of you or your cohorts. Your intention was to cause serious injury and you did just that. This community cannot tolerate individuals who seek to enforce this style of retribution, and the events of the Sunday before provide no justification for what you did.
…
I have attempted to balance these matters which go in mitigation by imposing a sentence which I acknowledge will not be subject to remissions but which is a sentence much shorter than your highly criminal conduct justifies, and I have also decided to order concurrency for all the offences in a further effort to acknowledge the mitigatory factors, particularly your lack of prior conviction and your plea of guilty on the wilful damage count.
However, in the court's view any sentence for behaviour of this kind must carry with it a deterrent message, the clearest indication that the recruitment of individuals to offer violence in the manner described in this case cannot and will not be tolerated."

He was sentenced to one month imprisonment for causing injury to Angela Wang, four months imprisonment for causing wilful damage, and eight months imprisonment for causing serious injury to David Zhao. No order was made as to cumulation. Accordingly, Mr Wan served only the head sentence of eight months.
When he was arrested at 10 Chapel Street these charges were pending. For that reason, he was released from immigration custody on reporting conditions.
On 9 February 1993 his application for refugee status was refused. He lodged an appeal to the then competent Committee, which affirmed the original decision on 30 June 1993.
On 1 July 1993, immigration officers and Victorian Police attended a Chinese massage parlour at 599 Nicholson Street, Carlton, Victoria. Officers of the Department identified a number of persons who were illegal entrants working illegally, including Mr Wan. He was not detained as he was then facing a number of criminal charges and was at the time out on police bail. Mr Wan has told a number of conflicting stories about this incident. Originally, he denied working at the premises, but ultimately, he agreed that he was in fact living there and on all the information that is available to me from this distance, it appears that he was, at the very least, in a management position.
After the sentence imposed on 9 March 1994 expired, he was released from prison on 21 September 1994. Thereupon, he lodged an application for special (permanent) entry permit under visa class 816 (sometimes known as a Tianamen Square application).
In the meantime, Mrs Wan had married and divorced. After she left the applicant, she began to see Raymond Arthur Gordon. Some time in June 1992, she found out that she was pregnant. Believing that Raymond was the father, she consented to marry him. This ceremony took place on 28 September 1992. They then travelled to China so that Raymond could meet her parents and so that she could give birth in China with the assistance of those parents. Raymond returned to Australia about 10 October 1992 while Mrs Wan remained with her parents and gave birth to a daughter, Annie, on 17 February 1993.
When Annie was born, Mrs Wan realised that the applicant must have been the father of the child as she looked Chinese and not at all like Raymond. She therefore telephoned both of them and told them the news. Raymond said that it did not matter that Annie was not his child as he wanted to continue to live with her.
In March 1993, Mrs Wan returned to Australia, leaving Annie in the care of her parents. She continued to live with Raymond until the relationship deteriorated. She finally moved out in May 1993 and moved back with the applicant. She was divorced from Raymond on 18 April 1995 and married the applicant on 28 May 1995.
Later that year, they both travelled to China to bring Annie back in December. Annie has since applied for and received Australian citizenship although she was not included in Mrs Wan's successful application for citizenship on 6 June 1995.
In view of his marriage, Mr Wan then notified the Department that he wished to withdraw his application for a class 816 entry permit. Instead, he lodged an application to remain permanently in Australia on the basis of a spouse visa. By that time, he was working in the Swedish massage centre at 601 Spencer Street, West Melbourne, which was owned by his wife, although from time to time he denied that he was the manager. Again, the evidence is clear that he had some managerial position.
Annie was granted permanent residence on 16 November 1995 and was brought back to Australia by her mother in December 1995. She had been in the care of her grandmother for the first two years and ten months of her young life.
In 1996, the applicant and Mrs Wan moved to Canberra. A company named Rachelle Rich Pty Limited was wholly owned by Mrs Wan. This company purchased a legal brothel called Club 77. According to her statement of evidence, the applicant worked there as her manager and as a receptionist. From time to time Mr Wan has denied that he was a manager. These denials appear to have been made at times when the consequences of managerial responsibility might have been unwelcome. Nevertheless, I am satisfied on the evidence that certainly while he was on duty for eight hours each day, he was the person in charge and was therefore the de facto manager. Having regard to the other evidence that all profits and income of the various companies owned between them were shared, I have no doubt that he was also correctly described at the very least as an overall joint manager. Although his responsibilities as manager may have been different from those of his wife, between the two of them, they were jointly in charge.
In August 1997, Rachelle Rich Pty Limited purchased a second brothel called Pretty Woman in Mitchell, Canberra. This was leased out. Although the applicant and Mrs Wan sometimes went to these premises to talk to the lessees to see if there were any problems, neither of them actually worked in these premises.
Club 77 employed prostitutes on a casual basis. It advertised for girls regularly. Many of the workers also simply walked into the premises and applied for employment. Although the applicant's evidence was that checks were made as to their legal entitlement to work, these checks could not have been efficiently organised. Both the applicant and Mrs Wan said that occasionally the girls would promise to bring back visas the following day but failed to do so. Most of the employees apparently were from various countries in Asia, including Indonesia, Thailand and China.
The premises came under the notice of the Department. Numerous visits, which could be called raids, were made both in general compliance sweeps and also in conjunction with the Australian Federal Police investigating other matters. Raids took place on 31 May 1996, 15 January 1997, 30 June 1997, 25 September 1997, 19 October 1997, 26 March 1998, 14 April 1998 and 21 May 1998. At each of these raids, illegal workers were detected, detained and taken away. Mr Wan pretended not to know what happened to them. He cannot have failed to observe that they did not return. He also gave contradictory evidence as to his role at the brothel. According to a compliance officer who was involved in some of the raids, Mr Wan identified himself as the owner.
Although from time to time Mr Wan has affirmed that his understanding of English is very poor, Mr Rhind, the officer in question, said that he had no difficulty in understanding Mr Wan and that Mr Wan appeared to understand him. Furthermore, in the first day of these proceedings before me, Mr Wan chose to give most of his evidence in English. He availed himself of the services of an interpreter on the second day of the continued proceedings. At the raid on 16 January 1997, Mr Wan is alleged to have told Mr Rhind that he did not undertake checks for workers' rights as they often did not have passports to check. He was given an employer awareness campaign pack in which the Department seeks to inform possible employers of their responsibilities. Mr Wan said that he could not read it as it was in English only. He did not, however, seek to have it translated or to pass it on. According to evidence given by Mrs Wan, she found it in a desk drawer. If this is so, then it certainly exhibits a lack of system and a lack of regard for migration procedures. Mr Wan on that occasion was given a business card and asked to contact the Department if he required assistance. There was, of course, no such subsequent contact.
I have not taken account of statutory declarations and other material obtained from brothel workers who alleged that Mr Wan did not carry out any immigration checks and, in one case, is alleged to have said that he did not care if the worker did not have permission, so long as she was careful about it. I have not taken account of this evidence because it is prejudicial hearsay and because there was no way in which it could be tested. Nevertheless, the frequency of raids, the frequency of removal of workers and the discussions which Departmental officers had with Mr Wan must have made it obvious to Mr Wan that there was a recurring problem about employing illegal workers and that neither he nor his wife was doing anything about it. Mr Wan purported not to be the manager when these consequences became clear. His wife accepted full responsibility when she no longer needed the approval of the Department for a visa application.
I do not accept the evidence of either of them on this matter. Both are inconsistent. On one occasion (transcript page 41) Mr Wan asserted that they checked working visas every time, on another occasion (same page) he agreed that he did not check passports if the worker promised to bring the passport on a following day but failed to do so.
Mr Wan's evidence was self-contradictory, not only in his account of conversations with officers during the raids but also in the evidence given before this Tribunal. I had a distinct impression that he would say anything to assist what he perceived to be his interests.
In January 1999, Mr and Mrs Wan moved to Sydney. Rachelle Rich Pty Limited unsuccessfully attempted to sell Club 77. It continues to be licensed to a third party for a fee of $600 per week. Although Mr and Mrs Wan say that they wished to put the past behind them, they therefore still have a link with the industry. Mr Wan now runs a Chinese restaurant in Turramurra, a northern suburb of Sydney, which opened on 6 October 1999.
A second child of the marriage, Andrew, was born on 6 September 1999. Annie (now aged 7) has been accepted as a student at Abbotsleigh, a well-known private school for girls in Sydney. It is intended that Andrew will also be educated in this country. Having been born here, he is, of course, an Australian citizen.
In early 1997, Mrs Wan's parents came to Australia from China and continue to live with the applicant and his wife. At the time of the reviewable decision, there was in place a general direction under section 499 dated 25 November 1997 to which I am obliged to have regard in determining whether a person is or is not of good character. The relevant paragraphs are as follows:
"2.When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such maters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour.
3.The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:

Where a non-citizen has committed a crime, been sentenced for a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;
Where a non-citizen has been convicted of offences, or the non citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;
Where there is membership of, or close association with, any group or organisation however small, which is involved in criminal activity;

Where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody."

The applicant's criminal behaviour falls within the terms of these paragraphs. His actions against David Zhao were part of organised criminal behaviour. They were carried out in conjunction with a number of assistants and were intended to damage a perceived business rival. The sentences for the various offences exceed a total of 12 months. The offences, as the Judge pointed out, were of a serious nature. These offences alone and their consequences would reflect serious concerns in the community about the character and conduct of Mr Wan as a non-citizen.
His attitudes towards migration law, particularly when he was the de facto manager of Club 77 also give rise to concerns which would be reflected in the Australian community. It is in the interest of that community that the integrity of the migration system be preserved. To allow that system to be recklessly or indifferently subverted would cause serious community concern.
It is true that he has not been convicted of any offences against migration law. There are, however, a number of offences with which he could have been charged. For example, section 235 prohibits a non-citizen from working contrary to the terms of any prescribed condition in a visa. It also prohibits any unlawful non-citizen from working in Australia. The penalty provided is a fine not exceeding $10,000. Mr Wan, on his own admissions, worked for many years without the benefit of a valid visa or any work conditions. Furthermore, there is a good chance that he would be convicted of aiding and abetting others to have worked contrary to their legal obligations at Club 77. At the very least, his activities at that club indicate a reckless indifference to whether or not migration provisions are observed by employees over whom he had influence and management responsibilities. As is pointed out in the Ministerial Direction, non-citizens must comply with expected standards of behaviour that reflect community attitudes in this connection. In my view, the applicant's behaviour has not met those standards.
There is a residual discretion vested in the Minister notwithstanding my finding that the applicant is not of good character. The relevant general direction deals with discretionary matters only briefly. There is no reason why considerations other than those set out in the direction ought not to be taken into account in determining whether the discretion ought to be exercised in the applicant's favour.
A consideration previously recognised in the Migration Instruction Series and now recognised in the current Ministerial Direction is the best interests of any relevant children.
So far as Annie is concerned, it may be noted that she spent almost the first three years of her life in China, away from her mother. A future life in China, should she accompany her father back to that country, would be easier for her than a child of a different ethnic background born in Australia. Andrew, of course, is only 10 months old and is too young to have culturally identified with Australia. If Mr Wan returns to China leaving behind his wife and children, Mrs Wan would undoubtedly suffer hardship. There would be no impediment, however, to her visiting China and returning from time to time as she has done on at least six occasions in the last few years. She is an Australian citizen and is free to travel between both countries. There might be some residual hardship to her parents, who live with her, and there might be some financial hardship if the Chinese restaurant were obliged to close. None of these subsidiary matters, however, outweigh the strength of community expectations to which I have referred.
Furthermore, Mrs Wan has been aware for many years of Mr Wan's activities which have led to the current decision. When she first met him he was an illegal entrant. By the time they married he had been charged with criminal offences. Their life was shared in Club 77. She is at least as responsible as he is for the immigration misconduct that took place with their employees.
Against these general aspects of hardship, there are public interest considerations. It would be totally unacceptable to the community that any person should be rewarded for continued and systematic breaches over a period of more than 10 years. Mr Wan overstayed his visa, he made an improbable refugee status claim, he has made false statements to officers of the Department, as well as being obscenely abusive (according to some reports). He has even attempted to deceive this Tribunal in the course of his evidence. Whatever countervailing considerations can be put forward on his behalf (and all that could possibly be said for him was skilfully presented by his solicitor) the countervailing considerations of public interest far outweigh them.
For these reasons, the decision under review will be affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Associate
Dates of Hearing  1-2 August 2000
Date of Decision  10 August 2000
Representative for the Applicant              Ray Turner
  (Tzovaras Yandell Lawyers)
Representative for the Respondent        Michelle Adamson (DIMA)