Wan and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 217

DECISION AND REASONS FOR DECISION [2002] AATA 217

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/780

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      Lei Wan
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date4 April 2002
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Migration Act 1958 should be exercised in the case of Lei Wan.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Spouse Visa – whether of good character – past criminal record – best interests of the children – discretion to be applied if applicant found not to be of good character - best interests of the children considered as primary to the interests of the Australian community.
Migration Act 1958 ss 499(1) (2) (2A), 501, 501(1)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Lei Wan v Minister for Immigration and Ethnic Affairs [2000] AATA 685
Wan v Minister for Immigration and Ethnic Affairs [2000] FCA 1822
Lei Wan v Minister for Immigration and Ethnic Affairs [2001] FCA 568
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

4 April 2002 Mr R P Handley

This is an application by Lei Wan ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 6 May 1999 to refuse the grant of a subclass 820/801 general (residence class) visa to Mr Wan. At the hearing, the Applicant was represented by Paul Brereton and Mark Robinson, of Counsel, and the Respondent was represented by Andras Markus, 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's wife, Min Hua Yang and by telephone by Dr David Lamb.
BACKGROUND
The Applicant, Mr Wan was born in the People's Republic of China on 26 April 1966 and is aged 35. He first arrived in Australia on 3 January 1990 on a student visa permitting him to stay until 22 July 1990. On 8 November 1990, Mr Wan applied for a protection visa which was refused on 9 February 1993. On 12 March 1993, Mr Wan applied for a review of that decision which was affirmed by a delegate of the Respondent on 30 June 1993.
Ms Yang was born in the People's Republic of China on 5 December 1962 and is aged 39. She first met Mr Wan in July 1990 at the International Language School in Melbourne. They began a relationship towards the end of 1990 and began to live together in early 1991. In about May 1992, their relationship broke down and, on 28 September 1992, Ms Yang, who was then pregnant, married Raymond Gordon, an Australian citizen. Mr Gordon and Ms Yang travelled to China together where Ms Yang gave birth to her first child, Annie Yang Wan, on 17 February 1993. Following the birth, it became apparent that the father of the child was Mr Wan, and Mr Gordon returned to Australia. Ms Yang remained in China with her parents for a while before returning to Australia on 25 March 1993, leaving Annie in the care of her grandparents. Initially, on her return to Australia, Ms Yang lived with Mr Gordon but, by about May 1993, that relationship had deteriorated and she resumed living with Mr Wan. She was divorced from Mr Gordon on 18 April 1995 and married Mr Wan on 28 May 1995. On 6 June 1995, Ms Yang became an Australian citizen. .
On 23 October 1992, Mr Wan was charged with a number of offences relating to an assault that took place on 12 October 1992. Mr Wan was subsequently released on bail, subject to reporting conditions. On 9 March 1994, he was sentenced by Judge Ross in the Melbourne Country Court to 8 months imprisonment for intentionally causing serious injury, 4 months for intentionally and recklessly causing injury, and 1 month for wilful damage to property, the sentences to be served concurrently, together with an order to pay compensation of $893.00. Mr Wan served 8 months and was released from prison on 21 September 1994..
On 27 July 1994, Mr Wan lodged an application for a special (permanent) entry permit - class 816 to enable him to remain permanently in Australia. On 7 July 1995, after his marriage to Ms Yang, Mr Wan notified the Department that he wished to withdraw his application for a class 816 entry permit. Then, on 13 July 1995, he lodged an application for a subclass 801 (spouse) visa based on his marriage to Ms Yang. 6. In 1996, Mr Wan and Ms Yang moved to Canberra. A company owned by Ms Yang, Rachelle Richie Pty Ltd, purchased a legal brothel called "Club 77", located at 77 Gladstone Street, Fyshwick. In August 1997, the company purchased a second brothel located at Mitchell called "Pretty Woman", which was leased out. Neither Mr Wan nor Ms Yang worked at this second brothel. Club 77 employed prostitutes on a casual basis, many of them from various countries in Asia, including Indonesia, Thailand and China. Compliance officers from the ACT Regional Office of the Department undertook field operations targeting Club 77 on 31 May 1996, 16 January 1997 and on several occasions during the period between March 1997 and July 1998. On each occasion, illegal workers were detected and detained.
On 27 September 1995, Mr Wan and Ms Yang travelled to China. Their daughter Annie was granted permanent residence on 16 November 1995 and they all arrived back in Australia on 20 December 1995.
In January 1999, Mr Wan and Ms Yang moved to Sydney, leasing out Club 77. On 9 March 1999, Mr Wan was interviewed by a departmental officer in relation to his application for a subclass 801 (spouse) visa. On 24 May 1999, Mr Wan's application for a visa was refused on the ground that he was not of good character and that the discretion in s 501 of the Migration Act 1958 ("the Act") Act should not be exercised in his favour. On 25 May 1999, Mr Wan's application for a review of this decision was lodged with the Tribunal.
On 6 September 1999, Ms Yang gave birth to a son, Andrew Wan. In October 1999, Mr Wan opened a Chinese restaurant in Turramurra. On 10 August 2000, the Tribunal affirmed the delegate's decision refusing Mr Wan's application for a spouse visa: Lei Wan and Minister for Immigration and Ethnic Affairs [2000] AATA 685. Mr Wan appealed to the Federal Court where, on 4 December 2000, Emmett J. dismissed the appeal: Wan v Minister for Immigration and Ethnic Affairs [2000] FCA 1822. Mr Wan then appealed to the Full Federal Court which, on 18 May 2000, allowed Mr Wan's appeal on the ground that he was denied procedural fairness before the Tribunal, and remitted the matter to the Tribunal to be re-heard: Lei Wan v Minister for Immigration and Ethnic Affairs [2001] FCA 568.
RELEVANT LAW
Section 501 of the Migration Act 1958 ("the Act") provided at the relevant time:
501 (1) the Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a) subsection (2) applies to the person; or
(b)the Minister is satisfied that if the person were allowed to enter or to remain in Australia, the person would
(i)        be likely to engage in criminal conduct in Australia; or …
501(2) This subsection applies to a person if the Minister:
(a)       having regard to:
(i)        the person(s) past criminal conduct; or
(ii)       the person(s) general conduct;
          is satisfied that the person is not of good character; or
(b)       …
Pursuant to the Transitional Provision 32 of Schedule 1 to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, despite subsequent amendments to the Act, review of decisions made prior to 1 June 1999 continue as if the amendments had not been made.
Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 820 (spouse) visa. Clause 820.224 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 401 which requires the Minister to consider whether it is appropriate to exercise his discretion under s 501 of the Act to refuse to grant a visa.
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 25 November 1997, the Minister, exercising his powers under section 499(1) of the Act, issued Direction No. 5 to give
further guidance to decision-makers as to the matters which the Government expects to be taken into account when assessing the good character requirement and deciding whether to refuse a visa if satisfied that the Applicant does not meet that requirement.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Wan is not of good character having regard to his past criminal conduct and his general conduct, so as to be precluded from the grant of a subclass 820 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
Min Hua Yang
Ms Yang said she lives at Wahroonga with her family and her present occupation is that of a "housewife". Her daughter, Annie, aged 9, is in Year 4 at Abbotsleigh School at Wahroonga and Ms Yang says she plans for Annie to continue her schooling there. Ms Yang plans for Andrew, aged 2 ½, to attend Knox Grammar School which is straight across the Pacific Highway from where they live. Ms Yang said her husband sold the Barbecue Kitchen Restaurant at Turramurra in March 2001 because they were concerned at the outcome of the current proceedings and, in particular, that if her husband had to return to China, she would not be able to run the business as well as caring for her children.
Ms Yang was asked about a statement setting out her and her husband's assets (A11). She said her company, Rachelle Riche Pty Ltd, owns a property at 1/108 Gladstone Street, Fyshwick, ACT which was purchased in 1998/1999 for between $50,000 - $60,000. She and her husband gradually developed the premises, which are used for the Club 77 brothel which they own, and the premises are now worth $300,000. At the time she and her husband purchased the property, they were both living in Canberra and working at Club 77 for up to 16 hours a day. Ms Yang said her role in Club 77 was that of managing phone enquiries and talking with the clients. When she and her husband moved to Sydney in 1999, they leased the Club 77 brothel and now receive an income from that business by way of a licence fee of $600 per week. They also receive rent of $1,000 per week in respect of the premises at Gladstone Street.
With regard to the property at 1 Gilda Avenue, Wahroonga where she and her family live, Ms Yang said some of the money for the deposit was loaned to them by her younger brother in China. Ms Yang said this property was purchased in late 1998 for $600,000 in her name. Otherwise, the purchase was financed by a mortgage of $450,000 and from their savings after many years of hard work. The repayments on the mortgage are $3,000 per month. Ms Yang confirmed that in the past 12 months, 1 Gilda Avenue has been re-zoned for multi-unit development.
Ms Yang said the flat at 9/21 Guilfoyle Avenue, Double Bay which was purchased for $380,000 in the year 2000, was purchased in her husband's name. Ms Yang said they owe $280,000 in respect of the flat, for which they pay mortgage payments of $2,000 per month and, receive $1,300 per month in rent. They paid a deposit of between $20,000 – $30,000 on the purchase price of $340,000. Ms Yang said when her husband sold the Barbecue Kitchen Restaurant in March 2001, for between $70,000 - $80,000, part of this money was used to repay a friend who had loaned them some money for the purpose of buying the Double Bay flat. Part also went to purchasing the property at 275/398 Pitt Street, Sydney, purchased some 2 to 3 months ago, as premises for the business from which her husband and his partner, Zhu Jing Can, run their introduction agency known as Golden Bird Australia Group. The Pitt Street premises are worth approximately $200,000 and the mortgage on those premises is $125,000, on which the mortgage repayments are $1,200 per month. Her husband's income from the introduction agency is approximately $1,000 per week. Her husband has only been involved in this partnership for two to three months.
Ms Yang said her husband manages all their properties and the income derived from them. She acknowledged that the properties at Fyshwick, Wahroonga and Double Bay were all purchased within a period of about a year.
Ms Yang said it was her husband's decision to send their children to the best schools. He spends one or two days a week taking the children out and maintaining his relationship with them. He drops the children off at school and picks them up afterwards whenever he is available. The children love their father and he loves them. In particular, Andrew looks to his father to participate in boys' games. If her husband were sent back to China, Ms Yang said it would have a big impact on the lives of their children, especially Annie who relies on him a lot

Ms Yang said her parents moved to Australia in 1997 to be close to Ms Yang and her family. Her father and mother are both now aged 65. Initially, her parents lived in Canberra, but when Ms Yang and Mr Wan moved to Wahroonga her parents moved to Hornsby. Ms Yang's brother is also now in Australia studying on a student visa for six months. He is married with one child. Ms Yang said all her family are now in Australia. She has no family in China, and it would be impossible for her to return to China.
Ms Yang said her parents are still having difficulty with English. Her mother is in poor health and suffers from heart problems and diabetes. She is admitted to hospital twice a month and Ms Yang has to go and look after her. Ms Yang spends a lot of time looking after her mother and does much of the shopping for her parents. Ms Yang acknowledged that her parents had looked after Annie in China for a while, but said this was when her mother was healthy and, did not have heart disease. It is customary for grandparents to be involved in bringing up their grandchildren. However, her parents no longer spend much time with the children. Her mother is unable to help much and her father spends much of his time caring for her mother's daily needs.
Ms Yang said that if her husband is refused a visa, she will stay in Australia and not return to China because of her two children, whom she wants to grow up and be educated here. Also, she now has to look after her mother who is here. Ms Yang said she would be very sad if her husband has to return to China. It would be a tragedy for their family and, she could not afford to maintain their standard of living and the payments for their children's education.
Ms Yang denied that she is an experienced businesswoman. Her experience is largely limited to working in the businesses which she and husband have run. However, she is now the mother of two children and spends most of her time looking after them and caring for her mother. Ms Yang was unable to imagine what would happen to her and her husband's property if they had to return to China. She said she and her two children are Australian citizens and would not be able to just switch their citizenship back to China at will.
Ms Yang acknowledged that she made five separate trips to China in 1998, one of which was for a short holiday. She had previously been there in 1995 for a period of about 5 months at the time of Annie's birth. Ms Yang said the medical facilities are much poorer in China – she had two operations related to her pregnancy whilst in China and they were very painful.
Dr David T Y Lamb
Dr Lamb had provided a letter dated 21 December 2001 (A10) to which an Electrocardiogram ("ECG") dated 16 February 2001 was attached. Dr Lamb said he graduated with a MBBS from the University of New South Wales in 1976. Thereafter, he was a resident medical officer at several New South Wales hospitals and has been a general practitioner since 1980. Ms Yu-Ling Wu (Ms Yang's mother) has been a patient of his since January 2001. He confirmed that Ms Wu has seen a cardiologist and that the ECG print out shows rapid irregular atrial fibrillation. Dr Lamb said it would be undesirable for Ms Wu to have the care of two children because on occasion she will need urgent hospitalisation.
Dr Lamb said he has seen Ms Wu twenty times since January 2001, that is approximately once every two to three weeks. She has suffered from a heart condition for about two to three years. This is an unpredictable condition that is not debilitating when it is not happening, but it can play up at any time and she would then need access to medical care. Meanwhile, she is taking medication to try and control the atrial fibrillation. Dr Lamb said that sometimes episodes are self-limiting and the symptoms pass after a few hours. However, if the symptoms are prolonged, Ms Wu would need to go to hospital for treatment. He said he is only aware of one episode requiring hospital treatment since January 2001. This was in December 2001 when it was necessary for Ms Wu to have treatment at the Emergency Department of Hornsby Hospital.
SUBMISSIONS
Applicant
Mr Brereton, said the Applicant accepts the first 40 paragraphs of the Respondent's Statement of Facts and Contentions which set out the background to this matter. The Applicant also accepts the findings set out in the first 28 paragraphs of Deputy President McMahon's decision of 10 August 2000, in particular, that the Applicant is not of good character for the purposes of s 501 of the Act. Referring to General Direction No 5, and the matters referred to in paragraph 3 of that Direction, Mr Brereton noted that the longest period of imprisonment to which Mr Wan has been sentenced was eight months, less than the twelve month period stipulated in the first point of the paragraph. Mr Brereton noted that a sentence of 8 months imprisonment is at the bottom end of the scale in terms of punishment for the offence of assault and should be taken as an indication that this offence was not considered by the Judge to be of the most serious nature. However, Mr Brereton acknowledged the finding of the Tribunal that Mr Wan's behaviour was such as "could give rise to concerns in the Australian Community", the second point referred to in paragraph 3. Mr Brereton said the third point, which involves group involvement in criminal activity, was not relevant here and, with respect to the fourth point, Mr Wan has not been convicted of any offences against Australia's migration laws.
Since the Applicant accepts the finding that Mr Wan is not of good character, the next issue to be considered is the exercise of the Minister's discretion in s 501(1) of the Act. As the Full Federal Court in Wan (supra) pointed out in this matter, since, in this case, the decision affects a child, the best interests of the child or children must be treated as a primary consideration: Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. The Full Federal Court in Wan (supra) said, at paragraph 32, that treating the best interests of the child as a primary consideration requires the Tribunal to adopt the following approach:

First, the Tribunal is "required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion"; and, second, "to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration".
Mr Brereton submitted that it is absolutely clear that the best interests of Mr Wan's children are for Mr Wan to be granted a visa. This has now been accepted by the Respondent in his Statement of Facts and Contentions at paragraph 79. Mr Brereton referred the Tribunal to Dr Lennings' report of 18 February 2002 (A6), noting that Dr Lenning was conscious of the need to take into account in making his report that there may possibly have been a priming of the children before he made his assessment. Dr Lennings' report is a well reasoned and balanced report which has not been challenged by the Respondent. Dr Lennings concluded his assessment of the harm likely to be caused to the two children if their father was required to return to China, in the following terms:
30.Both children appear to have a close and functional bond with their father. Both children will be significantly and adversely affected by the deportation of their father, however, in the short term the harm likely to accrue to Annie will be more severe than the harm accruing for Andrew. For both, the medium and long term harm associated with their father's deportation will depend on the success of the families attempts to adjust to that harm. If deportation also involves a loss of income and status, school relocation and perhaps even having to move house and area, I would assume that the harm associated with coping with the change will be even greater in the medium term for Annie. I am not sure that I can make much of a prediction for Andrew in the medium term. Too much will depend on the adjustment his mother makes to the deportation to be clear about the long term harm for Andrew.
31.I am unable to comment on the legal issues surrounding the action that has been brought against Mr Wan. However, from a purely psychological perspective, it seems the best interests of the children do not lie in the deportation of their father and significant harm will occur to both children, but particularly Annie if he is deported.
Mr Brereton pointed out that both children are Australian citizens, as is Ms Yang. As Australian citizens, the children are entitled to grow up in Australia and have the benefit of Australia's protection. Ms Yang's evidence is that the medical services are superior to those in China. With respect to the children's education, they can expect to be educated in high quality private schools. The children's maternal grandparents are now in Australia. Ms Yang's family is almost entirely now in Australia, and Mr Wan's sister is also here. Mr Brereton noted that Mr Wan and Ms Yang have built up a small but valuable portfolio of property and, if they have to return to China, this might have to be sold off in a fire sale. In any event, there is no evidence that the children or their mother have any right to return to China and Mr Brereton questioned why they should have to do so given that they are Australian citizens. If it is clear that the interests of the children are that a visa should be issued to Mr Wan, then the Tribunal must consider whether there are other considerations which outweigh the best interests of the children. Mr Brereton referred the Tribunal to the judgement of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 292:
A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.
In this case, the evidence of Dr Lennings supports a finding that there is likely to be substantial damage to the children if their father is denied a visa and has to return to China. Other subsidiary factors that weigh in favour of granting a visa are the location of the children's family in Australia, the fact that Ms Yang and her parents are now Australian citizens, and hardship to Ms Yang and the loss of financial support arising from the separation from her husband. Mr Brereton noted that Mr Wan also has extensive ties with Australia where he has significant property interests and a business and where he is a taxpayer.
Mr Brereton submitted that the sole adverse factor in Mr Wan's case is the concession that he is not of good character. Mr Wan's criminal record arises out of the same incident in October 1992. The Applicant recognises that the offences included a serious assault, albeit that this was in response to an assault on the Applicant on the previous day. The sentencing judge acknowledged that there were mitigating factors when sentencing Mr Wan to a period of imprisonment of eight months. Apart from Mr Wan's convictions relating to this incident in October 1992, he has no other prior convictions in China and no other record of offences in Australia. Mr Brereton said it now almost ten years since the incident giving rise to the convictions. He submitted that this was a "one-off" incident and there is nothing to suggest any risk of recidivism. Given these considerations, Mr Brereton submitted that Mr Wan's 1992 misconduct is not sufficient to outweigh the best interests of the children.
With regard to other factors, Mr Brereton noted that Mr Wan has never been charged with any offences under the Migration Act and the Respondent does not contend that he has committed any such offences. Mr Brereton noted that from late 1994, Mr Wan had permission to work in Australia. With regard to Mr Wan's financial situation, Mr Brereton contended that Ms Yang's and Mr Wan's property interests are as a result of their hard work and the savings generated by their legitimate businesses including Club 77 in Fyshwick. Mr Brereton noted that although Ms Yang and Mr Wan receive licence fees from the brothels in Canberra, they no longer run these businesses. They are seeking to run other businesses which do not run the risk of misconduct associated with brothels.
In conclusion, Mr Brereton submitted that it would not be a serious affront to the Australian community to grant Mr Wan a visa, his misconduct comprising only one serious incident nearly ten years ago. The other primary considerations do not outweigh the best interests of the children.
Responding to matters raised by the Respondent in its submission to the Tribunal, Mr Brereton said what Dr Lennings (A6) described as a "catastrophic" effect on the children had to be weighed against the low risk of repetition of misconduct by the by the Applicant of his misconduct. While Mr Wan acknowledges that he overstayed his original student visa in 1990 by approximately 4 months, nevertheless, he took the initiative in applying for a protection visa. Mr Brereton said the substance of the claims made by Mr Wan in that application are plausible. As the Minister's delegate found, in his record of decision, Mr Wan's claims about his family experiences during the Cultural Revolution were, on the whole, plausible (T16, para 5.3.1). The delegate accepted that Mr Wan may have taken part in pro-democracy demonstrations (T16, para 5.3.4) and considered plausible Mr Wan's claim that his family were questioned by the Chinese authorities about his involvement in anti-government activities in Australia (T16, para 5.3.5). Mr Brereton also submitted that there was no evidence of continuing and systematic breaches of Australia's migration law, although Mr Wan acknowledges that he may have been reckless in not checking the background of his employees at Club 77.
With regard to Ms Yang's evidence about her mother, Mr Brereton noted that Ms Wu does see her doctor on a fortnightly basis with regard to her condition. The evidence about Ms Yang's and Mr Wan's property in Australia was provided in order to show their connection with Australia. Mr Brereton submitted that to send Mr Wan back to China would cause severe hardship to Ms Yang because this would effectively mean the end of their marriage. Mr Brereton argued that no reasonable person would find that the other considerations in this case outweighed the best interests of the children.
Respondent
Mr Markus, for the Respondent, submitted that if the Tribunal is satisfied that the Applicant is not of "good character", then it must have regard to relevant considerations in deciding whether the Minister's discretion in s 501(1) of the Act should be exercised. The Respondent says the Tribunal is, in this case, bound by General Direction No 5 and, as the Full Court recognised in Wan (supra) at paragraph 33, the Tribunal is entitled to have regard to the expectations of the Australian community as a primary consideration of equal significance to the best interests of Mr Wan's children.
Mr Markus said the Respondent accepts that the interests of both children will be best served by a decision that would enable them to remain with their parents and in Australia. However, there are other considerations to be taken into account, which outweigh the best interests of the children. Mr Markus referred to Dr Lennings' Report (A6), where he noted that the family speaks Mandarin at home which, at this stage, is Andrew's principal language. This would tend to minimise linguistic difficulties if the family were to return to China.
Mr Markus said the Respondent accepts that Annie would be likely to suffer greater harm than Andrew, but acknowledged that it is difficult to speculate on what might happen in the future. Ms Yang gave evidence that she would stay in Australia if her husband had to return to China. Mr Markus submitted that her evidence should be treated as unreliable and referred the Tribunal to Deputy President McMahon's comments about her evidence in the original Tribunal decision. Mr Markus said it was apparent in the present proceedings that Ms Yang greatly exaggerated the care and attention required of her by her mother's condition. Dr Lamb's evidence was that Ms Yang's mother only had to go to hospital once in the period since January 2001, whereas Ms Yang gave evidence that she needed to go every two weeks.
Mr Markus was also sceptical about Ms Yang's evidence about their financial situation, given the Notices of Assessment issued by the Australian Taxation Office for the years 1999 and 2000 which show a relatively modest income and not one which one would expect to generate savings of $250,000 over a few years. Nevertheless, Mr Markus said the Respondent accepts that some hardship will be caused to Ms Yang and the children if Mr Wan has to return to China.
With respect to the protection of the Australian community, Mr Markus pointed to the seriousness of Mr Wan's criminal conduct, and that in his dealings with the Department in subsequent years, he had been verbally abusive on several occasions (T50, T57). Mr Markus said this suggested that Mr Wan has difficulty in controlling his emotions which is relevant to the issue of the risk of recidivism. Nevertheless, he said the Respondent accepts that the risk of Mr Wan committing a similar offence is relatively low.
Mr Markus said the Respondent submits that Mr Wan has shown a total disregard for Australia's immigration laws in the past. He overstayed his original tourist visa, he made an application for a protection visa without there being any substance to his application, he appealed against the refusal of that protection visa in order to enable him to remain in Australia, and he has continued to be untruthful in his dealings with departmental officers. The Respondent submits that there is a significant risk that Mr Wan's future behaviour would involve elements of unlawfulness if he perceives this to be for his benefit. Referring to considerations referred to in Direction No 21, which the Respondent submits has relevance as a statement of current government policy, Mr Markus said that the expectations of the Australian community suggests that to grant a visa to Mr Wan would be perceived as a reward for conduct which at times has been deliberately fraudulent, something which the community would find unacceptable.
With regard to other considerations, Mr Markus said the Respondent notes that Ms Yang and her parents are all Australian citizens and accepts that Ms Yang would experience hardship if Mr Wan had to return to China and she chose not to accompany him. However, Mr Markus said that when considering any hardship to Ms Yang, the Tribunal should take into account her knowledge of her husband's activities. The Respondent does not accept that if Ms Yang moved back to China, there would need to be a fire sale of her and Mr Wan's properties in Australia. In conclusion, Mr Markus said the Respondent submits that the other primary considerations outweigh the best interests of Mr Wan's and Ms Yang's children, and, therefore, the Minister's discretion should not be exercised in Mr Wan's favour, so as not to refuse the grant of a visa.
CONSIDERATION OF LAW AND FINDINGS
The first issue for the Tribunal to determine is whether, in accordance with s 501(2)(a) of the Act, it is satisfied that Mr Wan is not of good character. The Applicant accepts the conclusion reached by Deputy President McMahon in the original Tribunal hearing that Mr Wan is not of good character and the findings in Deputy President McMahon's decision upon which he based that conclusion. The Tribunal also relies on those findings. The Tribunal had particular regard to the comments by Judge Ross in the Melbourne County Court when sentencing Mr Wan on 9 March 1994. The Tribunal also noted Deputy President McMahon's comments concerning the running of the brothels with which Mr Wan and Ms Yang were associated and, the raids made by officers of the Department acting in conjunction with the Australian Federal Police, during which illegal workers were detected, detained and taken away. Deputy President McMahon commented that Mr Wan's evidence was self-contradictory and was inconsistent with that of his wife. Deputy President McMahon said he formed the "distinct impression that he [Mr Wan] would say anything to assist what he perceived to be his interests". Nevertheless, the Tribunal notes that it is nine and half years since the offences which took place in October 1992 and that Mr Wan and Ms Yang are no longer involved in running brothels.
Having determined that Mr Wan is not of "good character", the Tribunal must consider the exercise of the residual discretion under s 501(1) of the Act to decide whether, notwithstanding, not to refuse the grant of a visa to Mr Wan. In doing so, the Tribunal will have regard to General Direction No 5 as a guide to the exercise of its discretion. In particular, the Tribunal must have regard to the view of the Government expressed in paragraph 2:
that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocation conduct, and complicity with others who are involved in, or connected with organised criminal behaviour.

Paragraph 3 refers decision-makers to any criminal conduct by the non-citizen, including offences against Migration laws. Paragraph 4 states that offences against the person, including assault, and offences relating to prohibited drugs, are regarded by the Government as being of particular concern. Paragraph 5 requires that due regard be given to the nature, severity and frequency of any offences. Paragraph 6 requires that decision-makers, when considering the exercise of the s 501(1) discretion, should have regard to the spousal or partner relationship with an Australian citizen and whether, at the time that the relationship was entered into, the Australian citizen had knowledge of the non-citizen's misconduct, having due regard to the circumstances under which the relationship was established.

The Tribunal will also have regard to the best interests of Mr Wan's and Ms Yang's children, Annie and Andrew, as a primary consideration, in accordance with the legitimate expectation that administrative decision-makers will act in conformity with the United Nations Convention on the Rights of the Child of 17 December 1990, as recognised in Teoh (supra) at 291-292 by Mason CJ and Deane J. Such an approach was adopted in Vaitaiki (supra) and in Wan (supra). As the Full Federal Court stated in Wan at paragraph 32, the approach which the Tribunal should adopt is first "to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion" and, second, "to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration". As the Full Court recognised, the Tribunal is also entitled to regard the expectations of the Australian community as a primary consideration.
Following the approach set out by the Full Federal Court in Wan (supra), the Tribunal must first consider the best interests of the children. The Tribunal finds that both Annie and Andrew are Australian citizens as are their mother, Ms Yang and their maternal grandparents. If the children moved to China to live with their parents, this would have the effect of depriving the children of the benefits of their Australian citizenship and of living in the Australian community. The Tribunal notes that Ms Yang gave some limited evidence as to the medical system in China being inferior.
The Tribunal notes Dr Lennings' report of 18 February 2002 (A6), which indicates the language spoken at Mr Wan's and Ms Yang's family home is Mandarin, and that Andrew, who is now 2 ½, only appears to speak Mandarin. Dr Lennings reported that Ms Yang's English is limited but adequate for everyday communication, but Mr Wan's English is somewhat poorer and that, at times, Ms Yang assisted in translation. There appear to have been no difficulties for Dr Lennings in communicating with Annie. Annie attends Abbotsleigh School where she is in Year 4. Dr Lennings said he was told that Annie had settled in well at school, had good grades and a number of school friends. Ms Yang gave evidence that she and Mr Wan plan for Andrew to attend Knox Grammar School and provided a letter from the School dated 9 August 2000 (A9) confirming that a Waiting List Position has been reserved for Andrew as a day boy for Year 1 in 2006 and onwards. The Tribunal notes that Abbotsleigh Private School and Knox Grammar School have reputations for the excellence of the opportunities afforded to their students.
More specifically with regard to the relationship between Mr Wan and Annie and Andrew, the Tribunal formed the opinion that Dr Lennings' report (A6) took a balanced view and provided a realistic assessment of the relationship between Mr Wan and his children. In particular, Dr Lennings sought to assess the effect of the separation of Mr Wan from his children as a result of his being deported to China. He noted that Annie had been born in China and had spent the first 2 ½ years of her life there, being cared for by Ms Yang's parents when Ms Yang returned to Australia shortly after her birth. Based on his observation of the family and his talking with them over a period of a little over 2 hours, Dr Lennings concluded that:
Even allowing for Annie having been primed for the assessment, the strength of Annie's affection and concern for her father appears to me to be genuine. It appears to me that the children do have a genuine and deep relationship with their father" (para 22).
Dr Lennings made the following assessment of the likely harm to the children:
The loss of Mr Wan to both children is likely to be very difficult because it will prevent much in the way of visits. Unless the family emigrates to China, he will not be able to visit them. Such a loss is catastrophic. [para 26]
Certainly, for both Annie and for Andrew, severing the attachment will be severe because their attachments are entrenched, stable and meaningful to them. [para 27]
For Annie, the added complication of prior vulnerabilities make it more likely that severing the attachment may have long term consequences. [para 28]

Dr Lennings then concluded his assessment in the terms quoted by Mr Brereton and included in the summary of his submissions above at para 32.

On the basis of this evidence, the Tribunal finds that the best interests of Mr Wan's children will be served by his being granted a visa enabling him to remain in Australia. The Tribunal notes that the Respondent accepts this finding. The second step that the Tribunal must take, following the approach in Wan (supra), is to assess the strength of any other considerations and whether they outweigh the best interests of the children. The Respondent contended that the protection of the Australian community is another primary consideration as requested in Wan, by the Full Federal Court. The Respondent referred to the current Direction, Direction No 21, for guidance as a statement of government policy. Paragraph 2.3 of Direction No 21 sets out the primary considerations to which decision-makers are referred, these being the Protection of the Australian Community, the Expectations of the Australian Community and the Best Interests of the Child or Children. The Tribunal accepts that as paragraph 2.4 of Direction No 21 explains:
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.
The Tribunal recognises that the assault committed by Mr Wan in October 1992 is a serious offence. However, as stated, this occurred over nine years ago, there has been no repetition, and Mr Wan has sought to distance himself from the business of managing brothels. The Respondent accepts that the risk of Mr Wan committing a similar offence is relatively low. However, the Tribunal also notes the allegations of verbal abuse and that Mr Wan has flouted Australia's migration laws where he has perceived this to be for his benefit. Such conduct might also lead the Australian community to expect that a visa would not be granted to such a person.
Apart from these primary considerations, the Tribunal should also have regard to other relevant considerations such as hardship, which might be suffered by both Mr Wan and Ms Yang if Mr Wan were required to return to China. The Tribunal notes that Ms Yang may also have been involved in, at least, turning a blind eye to casual employees of Club 77 who were working illegally. However, since 1999, Ms Yang has been primarily involved in home duties and caring for her children. The Tribunal accepts that if Mr Wan were to return to China and Ms Yang and their children were to remain in Australia, she would suffer significant hardship through loss of his support. Ms Yang is an Australian citizen, her parents are also now in Australia and have become Australian citizens and Ms Yang gave evidence that she would remain in Australia to bring up her children here. The Tribunal also accepts that Mr Wan would suffer hardship by reason of the separation from his family.
The Tribunal is required to consider whether the cumulative effects of other considerations outweigh the best interests of the children. Looking at the situation as a whole, it is the Tribunal's view that Mr Wan's conduct has, in the past, rightly been the subject of serious concern. Nevertheless, his conduct is not of such serious concern as to outweigh the best interests of his and Ms Yang's two children that he should be permitted to continue to live with them in their family unit in Australia. The Tribunal concludes, therefore, that the best interests of the children are paramount as a consideration in this matter and that the Minister's discretion in s 501(1) should be exercised in Mr Wan's favour, so as not to refuse the grant of a visa despite the Tribunal's reluctance to grant Mr Wan a visa given his past history.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  25 February 2002

Date of Decision                  4 April 2002
Representatives for the Applicant          Mr P Brereton and Mr M Robinson
Representative for the Respondent      Mr A Markus