Wang and Minister for Immigration and Multicultural Affairs
[2001] AATA 586
•26 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 586
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/499
GENERAL ADMINISTRATIVE DIVISION )
Re SHENG HONG WANG
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date26 June 2001
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the Applicant not be refused a visa under section 501 of the Migration Act 1958.
...........(signed J Block).............
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – substantial criminal record – making false statements in connection with entry to Australia – failure to pass the character test – whether discretion should be exercised – where crime would not be considered serious in Australia – applicant entered into genuine relationship with Australian citizen – applicant's de facto partner attempting to have child – applicant's de facto partner unable to have another child in China because of one-child policy – applicant's de facto partner would suffer hardship if visa refused - no threat to the Australian community – no risk of recidivism – visa refusal unlikely to act as deterrence – exercise of discretion in favour of applicant
Migration Act 1958 – sections 234, 500(6F), 500(6H), 500(6L), 501(6)(c), 501G
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Re Awa and Minister for Immigration and Multicultural Affairs [2001] AATA 504
Re Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496
Re King and Minister for Immigration and Multicultural Affairs [2001] AATA 103
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551
Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648
REASONS FOR DECISION
26 June 2001 Deputy President J Block
This is an application for a review of a decision dated 30 March 2001 (which was communicated to the Applicant's migration agent in a letter dated 3 April 2001) by a delegate of the Respondent, refusing the Applicant's application for a temporary spouse visa. (The Applicant is sometimes referred to in the documents before the Tribunal as the "Visa Applicant".) In respect of that application the Applicant's sponsor or nominator was his de facto partner, Ms Jun Bao (referred to in these Reasons as "Ms Bao").
(a) The Applicant was represented by Mr Nicholas Poynder of Counsel, instructed by Ann O'Donoghue & Associates, solicitors, while Mr Leonard Leerdam of Spark Helmore, solicitors, appeared for the Respondent.
(b) The Tribunal had before it the G documents, and also the Supplementary G documents, both lodged pursuant to section 500(6F)(c) of the Migration Act 1958 ("the Act"). Because the Supplementary G documents are not numbered sequentially after the G documents, references to pages in the G documents are preceded by the letter "G", whereas references to the Supplementary G documents are (where relevant) preceded by the letter "S". The Tribunal also accepted into evidence a number of exhibits as follows:
Exhibit A1 is a judgment of the Criminal Trial Court in the Intermediate People's Court of Xin Jiang Production and Construction Corps First Farming Division, China, dated 26 September 1988;
Exhibit A2 is a letter by the Applicant to the Tribunal (undated, but written after the Applicant was detained in the Villawood Detention Centre in April 2001);
Exhibit A3 is a letter from Royal Prince Alfred Hospital dated 16 May 2001;
Exhibit A4 is an operation report dated 27 June 1998;
Exhibit A5 is a pathology report dated 30 June 2001;
Exhibit A6 is an operation report dated 28 March 2001;
Exhibit A7 is a pathology report dated 2 April 2001;
(Exhibits A3 to A7 (inclusive) are all medical documents referable to Ms Bao.)
Exhibit A8 is a statement by the Applicant dated 13 June 2001;
Exhibit A9 is a statement by Ms Bao dated 12 June 2001;
Exhibit A10 is an email addressed to the Applicant's solicitors from Hunt & Hunt Lawyers in Shanghai dated 13 June 2001;
Exhibit A11 is a report by Dr Sid Williams, a consultant psychiatrist, dated 11 June 2001;
Exhibit R1 is a copy of an incoming passenger card in respect of the Applicant dated 27 August 1996.
(c) The Applicant was assisted by interpreters in Shanghainese (a dialect of Mandarin). During the morning of 19 June 2001, the first interpreter acted in that capacity; after the luncheon adjournment, Mr Poynder applied for the first interpreter to be replaced by the second interpreter, Melinda Su ("Ms Su") on the grounds that the first interpreter was not interpreting the Applicant's evidence correctly. Mr Poynder (so I was later told from the bar table) was advised that the first interpreter was not translating the evidence of the Applicant satisfactorily by a Chinese friend of the Applicant, (sitting in the public gallery of the hearing room), and not (so I was told) by the Applicant himself.
(d) Ms Bao was assisted by a third interpreter (as Ms Su was not available), also in the Shanghainese dialect.
(e) This matter was heard on 19 June 2001; although the Tribunal sat until a late hour, the hearing could not be completed on that day; accordingly the hearing resumed on 21 June 2001. In accordance with subsection 500(6L)(c) of the Act, this decision must be delivered by not later than 26 June 2001 (being 84 days after the day on which the Applicant was notified of the decision under review in accordance with subsection 501G(1) of the Act). These Reasons have thus necessarily been prepared as a matter of considerable urgency.
(f) The G documents and the Supplementary G documents refer to the Respondent as the Department of Immigration and Multicultural Affairs ("DIMA"). However, the decision under review was made by a delegate of the Respondent Minister, who is accordingly cited as the Respondent in these Reasons.
I commence these Reasons by including in this paragraph 3, a number of statements, which were of assistance to me in this matter.
(a) The Applicant's Statement of Facts and Contentions dated 15 June 2001, reads as follows:FACTS
1.The following is a chronology of the relevant events in this matter, with references to the G Documents ("G"), the Supplementary Documents ("S"), and the applicant's evidence where appropriate:
17.12.59:Ms Bao born.
13.6.62:Mr Wang born.
1980:Mr Wang meets Ms Bao when they were attending college in PRC.
1980-81:Mr Wang and Ms Bao in a relationship.
26.2.83:Mr Wang convicted of "hooliganism" (G224) or "indecent behaviour (A1).
18.11.87:Ms Bao marries Mr Mao in PRC (G279).
2.11.88:Ms Bao's first son born (Dr Williams report at paragraph 23).
1.9.89:Mr Wang released from prison (A1).
1990:Ms Bao travels to Australia as a student.
30.7.92:Marriage to Mr Mao dissolved (G279).
18.9.93:Ms Mao marries Willem Van Harskamp (G278)
27.10.93:Ms Bao applies for permanent residence in Australia.
22.11.93:Ms Boa sponsors Mr Van Harskamp as a spouse to migrate to Australia.
27.7.94:Ms Bao granted permanent residence in Australia.
27.9.94:Ms Bao separates from Mr Van Harskamp.
8.8.96:Mr Wang is granted a subclass 456 (short stay business visitor) in Shanghai.
27.8.96:Mr Wang arrives in Sydney on subclass 456 visa for one month stay. Meets Ms Boa by accident and moves into her home the next day.
23.9.96:Mr Wang granted a further subclass 456 visa valid until 23.12.96.
17.12.96:Mr Wang applies for a subclass 686 (long stay visitor) visa - lodged with DIMA by Di Lizio and Associates (G061).
23.12.96:Mr Wang's subclass 456 visa expires.
2.1.97:Mr Wang interviewed by Mr Bill Doszpot of DIMA Bankstown regarding his application for a visitor visa.
9.1.97:Mr Doszpot considers that Mr Wang is not a genuine business visitor; nor that he is a genuine visitor.
22.1.97:Mr Wang's application for a visitor visa refused by DIMA Officer Liljana Velickovich.
14.1.97:Mr Wang applies for a subclass 820 (spouse) visa - lodged with DIMA by Barlow & Co (G078).
22.1.97:DIMA Officer Velickovich refuses application for subclass 686 visa.
10.2.97:Barlow & Co provide submissions on spouse visa, together with statutory declarations of Ms Bao and Mr Wang made on 7 February 1997 (S1)
5.3.97:Certificate of No Conviction sent by Barlow & Co to DIMA (G180).
12.5.97:Anonymous letter received by DIMA noting that Mr Wang spent 7 years in jail in PRC (G198).
18.8.97:Ms Bao's marriage to Mr Van Harskamp dissolved (G278).
10.11.97:Mr Wang requested by DIMA to give reasons for late application for visitor visa and submission on "compelling reasons" for spouse visa (S54).
3.12.97:Mr Wang provides submission to DIMA re visitor visa and spouse visa (S56).
2.98:Ms Bao suffers a miscarriage (Williams at 6).
27.6.98:Ms Bao's pregnancy terminated due to "blighted ovum" (G277).
5.12.99:DIMA Officer J. Ayoub finds that "compelling circumstances" exist in relation to subclass 820 spouse application, thus overcoming problem of Mr Wang's unlawfulness and serial sponsorship by Ms Bao (G213).
10.1.00:PRC Foreign Affairs Office advices that Mr Wang was sentenced to 7 years jail for "hooliganism" in 1983 and that he supplied false documentation to the PRC authorities (G224).
7.2.00:Letter to DIMA from Hovan & Co Solicitors regarding other outstanding information previously requested (G228).
26.9.00:Letter to DIMA from Raif Thevar Wu & Associates, Migration Specialists, advising that it has taken over this matter (G296).
28.11.00:Letter from DIMA re possible character refusal (G299).
7.2.01:Mr Wang's solicitor responds to DIMA letter (G303).
28.3.01:Ms Bao suffers another miscarriage (A6, A7).
30.3.01:DIMA officer Jenne Harrhy refuses spouse visa on character grounds (G343).
18.4.01:Application for review of decision lodged with AAT by Raif Thevar Wu & Associates.
19.4.01:Mr Wang interviewed at Villawood but interview terminated as Mr Wang is ill (G358).
CONTENTIONS
Delegate's findings:2.The respondent's delegate considered that Mr Wang did not pass the character test because he was convicted of "hooliganism" in the People's Republic of China ("PRC") in 1983 and sentenced to seven years jail, as a result of which he has a "substantial criminal record" within the meaning of s 501(7) of the Migration Act 1958 ("the Act") (G13).
3.The respondent's delegate also considered that Mr Wang was not a person of credit because of the following matters (G15):
(a) On 17 December 1996 Mr Wang applied for subclass 686 (long stay visitor) visa, and gave the following false information (G15):
(i)In answer to Qn. 27 "Have you been convicted of a crime…?", he answered "No", when in fact he had been convicted of an offence in 1983.
(ii)In the Declaration at Qn 29 he stated that "this request for an extension of stay is not for the purpose of achieving permanent residence in Australia"
(b) On 9 January 1997 a DIMA Investigations Officer had considered that Mr Wang was not a genuine business visitor (G15).
(c) On 14 January 1997 Mr Wang made an application for a subclass 820 spouse visa, and gave the following false information (G15):
(i)In answer to Qn. 20, he gave false information about his employment history during the period of time that he was in prison.
(ii)In answer to Qn. 40, "Have you been convicted of a crime…?", he answered "No".
(d) The delegate also gave weight to a claim by the PRC authorities that Mr Wang provided false information to the Chang Ning District Public Notary Office when he applied for a notorial (sic) certificate relating to his criminal record (G16).
Does Mr Wang pass the Character Test?
4.Section 501(1) of the Migration Act 1958 (Cth) ("the Act") provides that 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.
5.The Character Test, which is set out in s 501(6) provides, inter alia, that:
(6) …a person does not pass the character test if:
…(a) the person has a substantial criminal record (as defined by subsection (7)
(c) 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 character6.Section 501(6)(7)(c) defines "substantial criminal record" so as to include a sentence where the person has been sentenced to a term of imprisonment of 12 months or more.
7.Mr Wang cannot pass the Character Test by reason of his 1983 conviction, which involved a sentence of imprisonment for more than 12 months.
8.It is contended that the Tribunal should also consider whether Mr Wang would pass the Character Test by reason of his past and present criminal or general conduct. The respondent's delegate did not form a conclusive view on this, although she did consider (G16) that the matters set out above, at paragraph 3, "could well have been grounds to refuse the visa".
9.It will be important for the Tribunal to make a finding on whether Mr Wang would pass the Character Test by reason of the above conduct, so that the exercise of the discretion in Part 2 of Direction No. 17: Visa Refusal And Cancellation Under Section 501 ("Direction No. 17") can properly be carried out. It is contended that "the conduct" which is to be assessed in Part 2 of Direction No. 17 is the conduct which formed the basis of the failure to pass the Character Test.
10.In assessing whether Mr Wang would not pass the Character Test by reason of his past and present criminal conduct, pursuant to s 501(6)(c)(i) of the Act, the Tribunal will consider the matters set out in paragraph 1.8 of Direction No. 17. It is contended that the circumstances surrounding Mr Wang's 1983 conviction, in particular the essentially political nature of the charge and conviction, are such that he should be found to pass the past and present criminal conduct provisions of the Character Test.
11.In assessing whether Mr Wang would not pass the Character Test by reason of his past and present general conduct pursuant to s 501(6)(c)(ii) of the Act, the Tribunal will consider the matters set out in paragraphs 1.9 to 1.11 of Direction No. 17. Paragraphs 1.9(b) and (c), in particular, enable the Tribunal to consider whether an applicant has made a false or misleading statement in relation to a visa application, or a false or misleading declaration about character or conduct.
12.Mr Wang's conduct referred to in paragraph 3 above is clearly capable of coming within paragraphs 1.9(b) and (c) of Direction No. 17. However, it is to be noted that this conduct is to be weighed against any countervailing factors when determining whether such conduct would constitute a failure to pass the Character Test: Leyden v Minister for Immigration [2000] AATA 551 at paragraph 57.
13.In the present case, it is contended that there are significant countervailing factors which would support of a finding that Mr Wang satisfies the past and present general conduct provisions of the Character Test:
(a) His failure to disclose his previous conviction in answer to Qn. 27 of the subclass 686 visa application on 17 December 1996 and Qn. 20 of the subclass 820 visa application on 14 January 1997 were clearly referable to the false and political nature of the charge and conviction and his (validly held) belief that he had not in fact committed any crime.
(b) His false declaration at Qn 29 of the subclass 686 visa application on 17 December 1996 was no more than an inaccurate declaration. There was no attempt to mislead DIMA in this application, as Mr Wang had disclosed in answer to Qns. 20-21 (G062) and in his accompanying statutory declaration (G065) that he was in a de facto relationship with an Australian citizen and that they intended to get married. He clearly misunderstood the nature of the visa category and understood it to be available while awaiting the outcome of his spouse visa.
(c) The suggestion by the DIMA Investigations Officer in the memo dated 9 January 1997 that Mr Wang was not a genuine business visitor was actually considered in the context of an application for a visitor visa. The finding (set out in the decision of DIMA Officer Velickovich dated 22 January 1997) was that Mr Wang had failed to submit evidence to substantiate his claim at interview that he had conducted business in Australia while holder of a subclass 456 visa, and that he had not therefore complied substantially with the condition of that visa. However there is little evidence to support this finding, and in any event there would have been no point in seeking a review of the finding as Mr Wang clearly did not satisfy the further requirement that he seek to remain in Australia as a visitor.
(d) The false information given by Mr Wang as to his employment history in answer to Qn. 20 in his subclass 820 visa application on 14 January 1997 was simply an extension of his failure to disclose his 1983 conviction.
(e) The claim by the PRC authorities that Mr Wang provided false information to the Chang Ning District Public Notary Office when he applied for a notorial certificate relating to his criminal record is based on an untested hearsay assertion in an unsigned letter from the PRC Foreign Affairs Office. When weighed against Mr Wang's own evidence that he had not done so, the latter evidence should be preferred.
14.It is contended, on the above basis, that Mr Wang would have passed the Character Test, were it not for his 1983 conviction which brought him within the terms of s 501(6)(a) of the Act.
Exercise of the discretion:
15.There are three "primary considerations" identified in paragraph 2.3 of Direction No 17 and eleven "other considerations" in paragraph 2.17. In addition, there are "other international obligations" identified in paragraphs 2.18-2.23. As a result of the decision of the Federal Court in Aksu [2001] FCA 514 (Dowsett J, 4 May 2001) and Ruhl [2001] FCA 648 (Cooper J, 1 June 2001), the Tribunal must come to its own conclusions as to the relative importance of each of these considerations, and its discretion cannot be fettered by Direction No. 17.
16.The three so-called "primary considerations" are as follows:
(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 relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian community:
17.Three factors are identified in paragraph 2.5 of Direction No 17 as being relevant to the "protection of the Australian community":
(a) The seriousness and nature of the conduct.
(b) The likelihood that the conduct may be repeated.
(c) Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
The seriousness and nature of the conduct:
18.The "conduct" in this case can only be the applicant's conduct which has led to a failure to pass the Character Test. In the present case, this may be constituted by:
(a) his 1983 conviction; and
(b) his conduct in relation to previous visa applications and conditions.
19.It is contended that it will be relatively straightforward for the Tribunal to find that Mr Wang's 1983 conviction was not serious within the meaning of Direction No. 17. The offence of "hooliganism" is clearly one which does not exist under Australian law and, in the absence of any evidence to the contrary, the Tribunal should accept Mr Wang's identification of the essentially political nature of the offence.
20.Mr Wang's conduct in relation to previous visa applications and conditions is capable of falling within the Government's view of "very serious" conduct under the Act, under paragraph 2.6(c) of Direction No. 17. However, as discussed above, this conduct is mitigated by the very nature of the 1983 conviction. Were it not for that "false" conviction, Mr Wang would not have been put in a situation where he felt that he had to conceal the conviction. The matters referred to in paragraph 2.8 of Direction No. 17 will be particularly relevant in this instance.
The likelihood that the conduct may be repeated:
21.Given the political nature of the 1983 conviction, there is absolutely no likelihood that Mr Wang's "criminal" conduct will be repeated if he is granted a spouse visa, as there is no equivalent offence in Australia.
22.The delegate considered (at G16) that Mr Wang's conduct displays a continued disregard for Australian immigration law. However this conduct was really only in relation to the concealment of his 1983 conviction which, as discussed above, was done for understandable (if misguided) reasons. Without the need to further conceal his conviction, it is contended that there is no likelihood that Mr Wang's conduct would be repeated.
General deterrence:
23.It is contended that it would be fanciful to suggest that potential "hooligans" in the PRC would be deterred from committing any such offence by the prospect that they may at some time in the future wish to enter Australia and fail to meet the character test.
24.On the issue of Mr Wang's migration conduct, the Tribunal has previously expressed the view that the issue of deterrence is central to the refusal of visas where false information has been provided to DIMA: see, e.g., Maatouk v Minister for Immigration [2000] AATA 1023 at paragraph 8(a). The applicant cannot offer evidence that this would not be the case; on the other hand the respondent cannot offer any hard evidence that such refusal would have a deterrent effect. In the circumstances of the present case, where the falsity of the information provided is strongly mitigated by the particular circumstances of the case, it is submitted that this factor should not be determinative of the issue before the Tribunal.
Expectations of the Australian community:
25.Paragraph 2.12 of Direction No 17 suggests that "visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia."
26.However, the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
27.The punitive aspects of the s 501 power should be weighed up against other relevant circumstances in the particular case, including the circumstances of the criminal charge and conviction which had led to the failure by Mr Wang to disclose the matter.
28.Also extremely relevant in this respect will also be the interests of Mr Wang's wife, Ms Bao. The Australian community would no doubt be concerned with the removal of the love and support provided by Mr Wang to Ms Bao, who is an Australia citizen who would be greatly affected by his removal.
The best interests of the child:
29.There are no children which would be relevantly affected in this application.
Other considerations:
30.The primary "other considerations" in Direction No 17 which will be relevant in this case are set out in paragraph 2.17(b) and (c), being the genuine de facto relationship with Ms Bao and the degree of hardship which would be caused to Ms Bao by the removal of Mr Wang.
31.The report of Dr Williams dated 11 June 2001 sets out the history and nature of the relationship between Mr Wang and Ms Bao, and suggests (at paragraph 3) that "if Mr Wang were removed from Australia this would be catastrophic for Ms Bao", leaving her "at high risk of decompensating into severe depression and/or of harming herself in some way". Dr Williams also suggests (at paragraph 3) that the option of Ms Bao returning to the PRC with Mr Wang "would also be a disaster for her…She would face a bleak and hopeless future, and again would be at high risk of decompensation into depression."
32.It is contended that the strength of Dr Williams' findings and opinion are such as to elevate these matters in paragraph 2.17(b) and (c) to primary importance in the present case. The effect of a visa refusal in this case would be so catastrophic for the Australian citizen de facto spouse that this should be taken to outweigh the other considerations referred to in Direction No. 17: Aksu and Ruhl.
Other international obligations:
33.The removal of Mr Wang and the possible breakup of his relationship would be in violation of article 17 of the International Covenant on Civil and Political Rights ("ICCPR"), which states:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
34.A deportation or removal which has the effect of separating parents from each other or their dependant child will amount to an "interference" with the family within the meaning of article 17: Moustaquim v Belgium Judgement of 18 February 1991 (case 31/1989/191/291) at para. 36. Such interference will be "arbitrary" even if it is provided for under the law, where it would not be reasonable in the particular circumstances: UN Human Rights Committee, General Comment 16 of 8 April 1988, paragraph 4.
35.In the present case, the balancing of considerations, particularly in view of the nature of Mr Wang's conviction and the effect of the visa refusal on Ms Bao, it is contended that it would be unreasonable to remove Mr Wang from his Australian wife.
CONCLUSION
36.The Tribunal should order that the decision under review be set aside and the matter be remitted to the respondent with a direction that Mr Wang meets the requirements of the Character Test under s 501 of the Migration Act.
(b) The Respondent's Statement of Facts and Contentions, (handed to the Tribunal on 19 June 2001), and which reads as follows:
1 FACTS
1.1The Visa Applicant, Sheng Hong Wang, was born in the People's Republic of China on 13 June 1962: Section 500(6F)(c) Docs. ("Docs.") 110; Supplementary Docs ("S-Docs") 37.
1.2The Nominator for the Spouse Visa, Mrs Jun Bao ("the Nominator") was born on 17 December 1959: Docs. 69 and 161.
1.3The Visa Applicant and the Nominator first met in 1980 whilst attending college as students in the People's Republic of China (PRC): Docs. 306; S-Docs. 1, 28 and 30.
1.4On 18 August 1987, the Nominator married a Chinese national in PRC: Docs. 230: S-Docs. 30.
1.5On 20 April 1990, the Nominator arrived in Australia for study purposes: Docs. 72 and 230; S-Docs. 30.
1.6On 31 August 1992, the Nominator divorced her Chinese husband whilst in Australia: Docs. 230 and 279; S-Docs. 30.
1.7On 18 September 1993, the Nominator married an Australian national: Docs. 278; S-Docs. 2 and 30.
1.8On 27 October 1993, the Nominator applied for Permanent Residence in Australia: S-Docs. 2 and 30.
1.9On 27 July 1994, the Nominator was granted Permanent Residence in Australia: S-Docs. 2.
1.10In October 1994, the Nominator was granted Permanent Residence in Australia: S-Docs. 2.
1.11On 8 August 1996, the Visa Applicant was granted a short-term business stay (Class 456) Visa at Shanghai. There is no existing record of this application: Docs. 8; S-Docs. 28 and 56.
1.12On 27 August 1996, the Visa Applicant arrived in Australia: Docs. 110.
1.13On 27 August 1996, the Visa Applicant met the Nominator at the airport upon his arrival in Australia: Docs. 84; S-Docs. 2, 28 and 31.
1.14On 28 August 1996, the Visa Applicant and the Nominator commence a de facto relationship in Australia: Docs. 306; S-Docs. 2, 28 and 31.
1.15On 23 September 1996, the Applicant applied for, and was granted, another short-term business stay (Class 456) visa from the Chatswood Office of the Department of Immigration. On 23 December 1996, this visa ceased. There is no existing record of this application: Docs. 8 and 56.
1.16On 10 December 1996, the Nominator swore a statutory declaration in support of the Visa Applicant's Application for a Visitor's Visa indicating, inter alia, that she intended to marry the Visa Applicant as soon as the dissolution of her current marriage was finalised and on the condition that the Visa Applicant be "allowed to stay as a visitor for the time being": Docs. 65-66.
1.17On 12 December 1996, the Nominator was notified that her application for a grant of Australian citizenship was approved: Docs. 115.
1.18On 14 December 1996, the Visa Applicant applied for a Visitor's Visa (Subclass 686): Docs. 61-64. The Nominator provided a statutory declaration dated 10 December 1996 in support of the Visa Applicant's Application for a Visitor's Visa: Docs. 61-66.
1.19On 23 December 1996, the Visa Applicant's short-term business stay (Class 456) visa expired: S-Docs. 56.
1.20On 2 January 1997, the Visa Applicant was interviewed by the Investigations Section of the Department of Immigration regarding his reason for coming to Australia. The Interviewing Officer concluded: "I am of the opinion that Mr Wang is not genuine business visitor to Australia": Docs. 77.
1.21On 14 January 1997, the Visa Applicant applied for a subclass 820 (spouse) visa on the basis of his claimed de facto relationship with the Nominator. In this Application, the Visa Applicant included details of his employment history and the Nominator made a statutory declaration sworn on 7 February 1997 in support. The Visa Applicant also submitted a completed Form 80 – Personal Particulars for Character Assessment in support of his Subclass 309 (Spouse) Visa: Docs. 80-107.
1.22On 7 February 1997, the Visa Applicant and the Nominator swore statutory declarations in support of the Visa Applicant's Application for a Spouse Visa: S-Docs. 28-29 and 30-31.
1.23On 22 January 1997, the Department of Immigration notified the Visa Applicant that his Application for a subclass 686 visitor visa was refused. The basis for refusal was because the Visa Applicant had not complied substantially with the conditions of his short-term business stay visa that was granted on 23 September 1996: Docs. 175 and 171.
1.24On 4 February 1997, the Visa Applicant and the Nominator swore a joint statutory declaration supporting the Visa Applicant's Application for a Spouse Visa: Docs. 232-233.
1.25On 19 February 1997, the Nominator was issued with a Certificate of Australian Citizenship and her Australian citizenship commenced.
1.26On 19 September 1997, the Nominator divorced from her Australian husband: Docs. 278.
1.27On 10 November 1997, the Department of Immigration requested the Visa Applicant to submit further information, namely:
· Reasons to explain the late application for a visitor's visa which was lodged on 14 January 1997, after the expiration of his substantive visa (the Short-term business stay (Class 456) visa) which expired on 23 December 1996; and
· Compelling reasons for continuing to process the Application for a spouse visa as "serial spouse" provisions were enlivened with respect of the Nominator: S-Docs. 54-55.
1.28On 3 December 1997, the Visa Applicant provided information to the Department of Immigration concerning his late application and compelling reasons for the grant of the spouse visa: S-Docs. 56-58 and attachments.
1.29On 5 February 1998, the Visa Applicant notified the Department of Immigration that the Nominator was pregnant: S-Docs. 77-78.
1.30On 29 January 1999, the Department of Immigration requested the Visa Applicant to provide:
· A birth certificate of the child of the relationship with the Nominator; and
· Police clearances from the Australian Federal Police (AFP) and the PRC Authorities: Docs. 178-179.
1.31On 5 March 1999, the Visa Applicant's representatives provided information and documentation to DIMA including a Notarial Certificate of No Criminal Convictions and advised that the Visa Applicant "has no children": Docs. 180-186.
1.32On 23 March 1999, the Visa Applicant's representatives provided the Department of Immigration with an Australian Federal Police Certificate indicating no criminal convictions for the Visa Applicant: Docs. 196-197.
1.33On 12 May 1999, the Department of Immigration received a "dob-in" letter indicating that the Visa Applicant was jailed in PRC for seven years and was a criminal: Docs. 198.
1.34On 5 December 1999, a new DIMA case officer concluded that there were compelling circumstances to continue processing the Visa Applicant's spouse visa application. The compelling circumstances included: the "age" of the application, the continued processing of the application by DIMA officers and the on-going co-habitation of the Visa Applicant and the Nominator: Docs. 213.
1.35On 5 December 1999, the Department of Immigration requested further documentation/information to continue processing the Visa Applicant's spouse visa application: Docs. 210-212.
1.36On 10 January 2000, the Department of Immigration received information from the authorities of the People's Republic of China (PRC) indicating that the Visa Applicant had:
· been sentenced to seven years imprisonment and political rights removed for two years, for hooliganism
· supplied false documentation to the Chang Ning District Public Notary's Office in order to obtain a Notarial Certificate indicating that he did not have a criminal record: Docs. 224-227.
1.37On 7 February 2000, the Visa Applicant provides information to the Department of Immigration indicating that the Nominator had terminated the pregnancy for medical reasons on 27 June 1998: Docs. 228-231 and 276-277.
1.38On 28 November 2000, the Department of Immigration sent the Visa Applicant a Notice of Consideration providing him with an opportunity to comment on the information received from the PRC authorities and the possible visa refusal based on failing the character test: Docs. 299-300.
1.39On 7 February 2001, the Visa Applicant responded to the Department of Immigration's Notice of Consideration and the advice received from the PRC authorities: Docs. 303-312.
1.40On 30 March 2001, a Departmental Delegate decided to refuse the grant of a Spouse Visa to the Visa Applicant in accordance with Section 501 of the Migration Act 1958: Docs. 8-21 and 336-356.
1.41On 3 April 2001, the Visa Applicant was notified of a decision to refuse the grant of a visa in accordance with Section 501 of the Migration Act 1958: Docs. 6-7 and 336-337.
1.42On 18 April 2001, the Visa Applicant lodged an Application for Review of Decision at the Administrative Appeals Tribunal (AAT): Docs. 3-4.
2 LEGISLATIVE FRAMEWORK
Subclass 820 (Spouse) Visa2.1In order to be granted a Subclass 820 Spouse visa, Mr Wang must satisfy the relevant public interest criteria, including Item 4001 of Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under section 501 of the Migration Act 1958 ("the Act") to refuse to grant a visa.
2.2Pursuant to clause 820.225 of the Migration Regulations (1994), an applicant for a spouse visa must satisfy public interest criterion 4001 at the time of the decision. That criterion requires an applicant to satisfy the Minister that he or she passes the Character test.
Section 501 - The Character Test
2.3Section 501(1) of the Act states as follows:
"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 defined by subsection (6). Relevantly, section 501(6)(a) of the Act states as follows:"(6) For the purposes of this section, a person does not pass the "character test" if:
(a)the person has a substantial criminal record (as defined by subsection (7));
….
Substantial criminal record(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more"
2.4It is contended that the Applicant does not pass the character test as defined in section 501(7) of the Migration Act 1958.
Ministerial Direction
2.5Direction number 17 of 1999 was made pursuant to section 499 of the Act on 17 June 1999 and is entitled "Visa Refusal and Cancellation under Section 501 – No.17" (the Policy Direction). It provides guidance in making decisions to either refuse or cancel a visa under section 501 of the Act. Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal in that they must be given due consideration: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238.
The Respondent contends that this remains the case notwithstanding the Federal Court's decisions in Aksu v MIMA [2001] FCA 514 and Ruhl v MIMA [2001] FCA 648, against which the Minister has appealed. Justice Dowsett in Aksu did not challenge the power of the Government to issue a guiding policy, but rather commented that Direction 17 in particular went beyond merely operating as a guide in the way described above, instead operating as a fetter on the discretion.
It is contended that the remarks of Justice Dowsett in Aksu concerning the validity of Direction 17 are obiter dicta. This is because the decision turned on the fact that the submission was made to the Minister stating that he was bound to follow Direction 17, even though he was not. Importantly, the fact that the Minister considered himself bound was an error of law irrespective of whether the Direction was a fetter or a guide. Hence, Justice Dowsett's conclusion on the validity of the Direction was unnecessary to the result of the case. Similarly, the decision of Justice Cooper in Ruhl turned on a construction of Direction 17 which amounted to an invalid fetter on the discretion conferred by section 501(2) of the Act, given the manner of its application by the Minister .
Both Aksu and Ruhl turned on what the Court considered to be the uncritical application of Direction 17 by the Minister as outlined in the respective submissions before him. The Respondent contends that the Tribunal's approach in Batula v MIMA [2001] AATA 296 is correct. Direction 17 should not be construed in a manner amounting to a fetter on the discretion of the Tribunal because of the importance (as opposed to "weight" the Tribunal may assign) the Government places on primary considerations. Direction no 17 is an instrument falling within the scope of section 46(1)(b) of the Acts Interpretation Act 1901 (Cth) which requires the Tribunal to prefer a construction which is not in excess of the power conferred by section 501(2).
The Direction states the Government's view that other relevant considerations should be given less weight than primary considerations. There are powerful considerations which justify the Minister adopting a guiding policy (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641, and pursuant to subsection 499(2A), the Tribunal must comply with such direction. The respondent contends that this does not preclude the Tribunal from considering the particular circumstances of an individual case (Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713). Nor does it prevent the Tribunal from balancing a number of factors while still having due regard to the importance placed by the Government on the primary factors (Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698).2.6Part 1 provides directions on the application of the character test. Non citizens who are being considered under section 501 must satisfy the decision maker that they pass a character test. If a non-citizen does not pass the character test, the decision makers must consider the exercise of their discretion on whether to refuse or to cancel a visa.
Character Test
2.7Before finding that a non-citizen is not of good character due to their past or present general conduct, Part one of Direction 17 requires the Tribunal to have regard to all the relevant factors in the case. This includes evidence on recent good character but it also specifically includes the following:
(a) Whether the non-citizen has been involved in activities indicating contempt or disregard for the law or for human rights.
(b) Whether the non-citizen has in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement.
(c) Whether the non-citizen has ever made a false or misleading declaration on an approved form as defined by subsection 5(1) of the Act.
It is submitted that the Visa Applicant's clearly fails the character test because he has a "substantial criminal record" as defined in section 501(7) of the Act.
Primary Considerations - The protection of the Australian Community and members of the community
A primary object of Direction 17 is to protect the Australian community from crime. The Visa Applicant has consistently breached Australia's immigration laws since 1998. He has provided false information and actively misled immigration as to his conviction.
(a) Seriousness and nature of the conduct
While the Applicant contends that the conduct leading to his 1983 conviction is not "serious" within the meaning of Direction 17, he has offered the Tribunal no independent evidence of the circumstances in which his crime was committed.
The Respondent contends, however, that the subsequent actions of the Applicant in his dealings with the Australian immigration authorities should be taken into account by the Tribunal. The Applicant has committed numerous breaches of section 234 of the Migration Act 1958.
(b) The likelihood that the conduct may be repeated.
If the Tribunal sets aside this decision, the Applicant will, after a period of two years be eligible for the grant of a permanent visa, subject to the genuine and continuing nature of the relationship. In other words, he must further satisfy a delegate of the Respondent of certain criteria in order to become a permanent resident. In these circumstances, the risk of further offences could not be precluded.
(c) Whether visa refusal or cancellation may prevent or discourage similar conduct.
Paragraph 2.11 requires the Tribunal to give weight to the deterrent effect of a refusal decision in this case. It is submitted that significant weight should be given to that factor in the facts of this case. The Visa Applicant has engaged in immigration malpractice of a very serious nature. If the Tribunal sets this decision aside, it would indicate to any reasonable person (who would be aware of the facts of this case) that other prospective Visa Applicants may flagrantly breach Australia's immigration laws and still expect to be given permanent residence.
Expectations of the Australian Community
It is clear that the expectations of the Australian Community in this case would require the decision to be affirmed. The Visa Applicant has already committed frequent and serious breaches of immigration laws in circumstances where that risk continues to be high. It is to be expected that such an application be refused.
The best interests of the child
As the Visa Applicant does not have any children, this factor is not relevant. Somewhat unconnected with this case, it is noted that the Review Applicant has a 12 year old son resident in China.
Other Considerations (para 2.17)
While the circumstances of the Review Applicant are deserving of considerable sympathy, those circumstances have arisen because of her own individual history and are not directly connected with the present case. There are no other considerations in this case deserving of significant weight in comparison to the primary considerations. While it is accepted that some emotional hardship will accrue to the Review Applicant if the Tribunal were to affirm the decision, the extent of that hardship needs to be weighed in the circumstances of this case. There is no evidence of other significant ties obtained by the Visa Applicant during his stay in Australia.
Summary
In summary, it is submitted that the facts of this case are weighed significantly in favour of an affirmation of the decision to refuse the Applicant a visa.
(c) Exhibit A8, reads as follows:
1.I was born on 13/6/62 in Shanghai in the Peoples Republic of China.
2.My education was at the technical college in Shanghai. I finished the architecture course with good grades.
3.I have a younger brother who is about 30 years old and a mother and father, both of whom are retired, all living in Shanghai. I do not support them.
4.In the various applications I have made to immigration I have used different agents. The first agent did not help me and so I went to the second agent. The second agent closed down and a third firm split off from the second agent, the person dealing with my matter taking it with him to the new firm. That agent subsequently started his own business and again took the matter with him to the fourth firm. I eventually realized that he was doing a slack job and giving me wrong advice and I then consulted my present agents Anne O'Donoghue and Associates, Immigration Solicitors and Migration Consultants.
5.I was convicted in 1983 for the offence of hooliganism. There was only the one charge but it included a whole lot of allegations, which were not true.
6.At that time I was not content to live the restricted lifestyle imposed on the population by the authorities. I used to frequent a hotel for foreigners where there was dancing and drinking. I attended this hotel with girls who also wanted to experience a different lifestyle and meet up with foreigners. The authorities accused me of things that I had not done.
7.I did not admit the offence, because the allegations were not true, although I was told that I would receive a lighter punishment if I confessed.
8.The hearing took 10 to 20 minutes in front of one judge, who had two other persons sitting at his side.
9.I was allowed to speak a few sentences and was then cut off, the judge saying "that's fine now it's finished". I had a lawyer but he was not allowed to say more than a few sentences. I was sentenced to seven years exile on a prison farm in North West China, at a place in the middle of the desert called Xinjaing. I was forced to work with the other prisoners to try to create arable land in the desert.
10.I served 6 years and 2 months as I was released early for good behaviour.
11.At the time I was sentenced there was a harsh and oppressive regime in China. If I had behaved in the same way in the late 1980's or early 1990's, as I behaved in 1983, I would not have been charged with any offence, because there was much more liberty allowed to the population and people were allowed to interact with foreigners.
12.I did not disclose my conviction when the immigration form was filled out on 14/1/97. The agent asked me questions and filled out the form as I answered. He was Chinese so there was no interpreter present. It was all done very quickly. My impression was that the form was not read out to me word for word, but I was given a rough idea of the questions.
13.Q.40 was not read out to me word for word as it was not read out and interpreted. I was simply asked by the agent if I had been convicted.
14.When I had consulted the first agent I had told him that I had been sentenced to 7 years for hooliganism, although I was not guilty.
15.When applying for my passport before coming to Australia I went to the local Police (Public Security Bureau) in Shanghai. I showed the local PSB my Chinese ID card and an application letter for a passport that I had written. I did not have to submit any form at that time, so the question of convictions did not arise. The local PSB gave me a paper to take to the main PSB, which I did.
16.The main PSB asked me to fill out a form, but I don't remember any questions about convictions. If there had been such a question, I would have answered it correctly, because the conviction occurred it Shanghai, where I applied for the passport and I would not be able to lie because the conviction would have been recorded.
17.I have been shown my statutory declaration of 7/2/97, which has been translated to me. I made the original statement in Chinese. The English version that I signed was not translated to me at the time and as now translated is not the statement I made to the agent.
18.In paragraph 5 it is stated that Jun and I knew each other for 3 years. That is not correct. We knew each other for about 1 year.
19.Paragraph 7 & 8 are not the words I used. Although we began living together almost straight away after I arrived in Australia, the relationship of love and affection developed over a period of time.
20.Jun has only known about my conviction, since I told her at the end of the year 2000. I had to tell her because of the letter I received from Immigration about the conviction. I did not tell her before because the offence involved other girlfriends.
21.After I split up with Jun because she obeyed her parents, who were against our relationship, I did not see her again until I arrived in Australia. I was surprised to see her at Sydney Airport after all those years. She told me that she had come there to see a friend off.
22.There was someone at the airport from the company, which had invited me and my friend to Australia. This company wanted to establish an agency to import air-compressors from the company I worked for in Shanghai.
23.Jun gave me her phone number and I contacted her, I think later that day. I moved in with her the next day. I was happy to see her again. We talked about old times and eventually established a loving permanent relationship.
24.We intend to get married. We have not done so yet, because as the eldest son I am supposed to get married in China where my parents live. If I could go back to China with Jun, get married and come back again as man and wife I would do so.
25.I am prepared to have Jun's 12-year-old son come to live with us in Australia, although I have never met him. He is now living with Jun's parents. I have spoken to him on the phone when Jun has rung her parents from Australia. I also spoke to him in 1999 or 2000 when I rang her at my parents' place in Shanghai, where she had gone to visit with her son.
26.In Australia I maintain Jun and myself, because she has not worked for quite a long time, as she is in poor health. She has miscarried my child on 3 occasions and we are both very upset about it.
27.Jun and I have mutual friends and I have friends that I met at work. I also have old school mates who now live in Sydney. I have not been in trouble with the Police in Australia and I have not mixed with people of bad character.
28.I can't imagine how it would be if I am deported back to China. At the moment I don't dare to think about it.
(d) Exhibit A9, reads as follows:
1.I was born in Shanghai the Peoples Republic of China on 17/12/59.
2.I am an only child and have both parents sill alive, living in China. I also have a son from a previous marriage, who lives with my parents. My son is 12 years old.
3.I finished technical college in Shanghai, graduating as a watchmaker.
4.I arrived in Australia in 1990 and obtained my permanent residence status on 27/07/94.
5.In Australia I have worked as a sewing machinist, in restaurants, at a service station and other manual jobs.
6.I have not worked for the past 3 or 4 years, as I have been in poor health, suffering from gall stones and I have also had 3 miscarriages. Sheng has supported me since I have only been able to work for short periods of time on a casual basis. At present my health is poor and I am unable to work at all.
7.My last miscarriage was in April this year. I believe it occurred because I was upset over Sheng's detention.
8.I met Sheng in 1980 and we went out together for about 1 or 1 ½ years.
9.As I was an only child my parents were very strict. They did not like me going out with Sheng because I am 2 years older. They never met Sheng. Because of this pressure from my parents I split up with him.
10.I signed a statutory declaration on 7/2/97. I spoke to the immigration agent in Chinese and told her the story about Sheng and me. I did not see the statutory declaration being typed nor was it translated to me before I signed it. I assumed that what I had told the agent had been faithfully translated.
11.When Sheng was arrested I read the statutory declaration through for the first time. A lot of things in it are not correct and are not what I told the agent. In paragraph 5 I did not say that Sheng and I have been together for 3 years. In paragraph 9 I told the agent that my husband had hurt me during sex and made me bleed. We argued about that. One day he appeared without any clothes on with a plastic pipe over his penis hanging below his knee. There was a plastic pump ball attached to the end of the pipe. I was scared and never had sex with him after that. We did not continue to live together as man and wife as stated in the statutory declaration, although we both lived in the same house. My husband kicked me out 3 or 4 months later. The quarrelling was about his strange sexual behaviour not about his ex-wife.
12.I had established a happy life together with Sheng. I have nothing to go back to in China, except my son who I want to bring out to Australia when Sheng's case is finished.
13.I was brought up by my grandmother from the age of 4 or 5 years. One day when I was 10 years old, the teacher said she had never seen your mother, so my mother came to the school. In front of me my mother told the teacher "we never liked this daughter." I was very upset and am still upset today about that remark. I remember asking my grandmother why my parents hated me. I don't know why but I think it must be because I am not a boy and my mother did not want to have any more children in case she had another girl. So I would never go back to live with my parents.
14.Sheng and I have not been married yet, because his parents want him to marry in China and he wants to please his parents.
15.When immigration said that Sheng had convictions in China, Sheng told me about it. He told me that he was sentenced to 7 years but he said he didn't do the things he was accused of. Knowing Sheng I don't believe the accusations.
16.In China in the early 1980's couples did not go out by themselves because it was frowned upon. I think perhaps Sheng was a "naughty boy" but did not do anything that was criminal. He partied and had girlfriends. Even if the accusations of hooliganism are true, it does not make any difference to me. The Sheng I know is hard working, kind and I love him very much.
17.If Sheng is forced to go back to China, I will have to go on the single parent pension as he has been supporting me for the past 3 or 4 years.
18.I want to apply to bring my son to Australia to be with me, but have been waiting to find out what will happen first with Sheng's case.
(e)Exhibit A1 (the judgment), the English translation of which reads as follows:
The Intermediate People's Court of Xin Jiang Production & Construction Corps First Farming Division
Judgement
(88) L Y F X J Zi No. 1564
The convict Wang, Shenghong, male, aged 27, Han nationality, a native of Jiangsu Province, is now serving prison term in No. 4 Labor Reform Unit, Regiment 4 of First Farming Division.
The above-mentioned convict Wang, Shenghong was sentenced to 7 years imprisonment on the conviction of indecent behaviour in the Criminal Judgement (83) C L X Zi No. 283 by Shanghai Changling District People's Court on 26 December 1983.
Th Regiment Labor Reform Management Section submitted to the Court a proposal on the reduction of imprisonment on the ground of his meritorious services and sincere repentance on 26 February 1988 for examination.
The Court has made it clear through examination that the Convict Wang, Shenghong indeed had made sincere repentance and meritorious service during the period in which he was serving the term. According to the provision of Article 71 of the Criminal Act of the People's Republic of China, we made the following judgement:
The convict Wang, Shenghong reduced his imprisonment by 10 months starting from 2 July 1983 and ending 1 September 1989.
26 September 1988
Criminal Trial Court in the Intermediate People's Court of Xin Jiang Production & Construction Corps First Farming Division (seal)
Chief Judge: Chen, Peiyuan
Judge: Guo, Qiyuan
Judge: Huang, Qi
26 February 1988
Clerk: Yan, Dingji
(f) A statutory declaration by the Applicant dated 13 January 2001 (G42, pages 309 – 311 inclusive), reads as follows:
1.Sometime in 1983 one of my relatives came back to Shanghai from Singapore. At the time he lived at Jing Jiang Hotel, which only admitted foreigners and would not serve the Chinese. Anyone who wanted to enter the hotel had to produce a passport.
2.I went to visit my relative at the hotel. During one visit I met Miss Zhuang at the Friendship shop, which was also a shop reserved for foreigners which did not serve local Chinese.
3.I never mentioned to Miss Zhuang that I was not from China, however she wanted her friends to believe that I was a foreigner and she told her friends that I was from Hong Kong.
4.One night we had too much to drink and stayed at the place of Miss Zhuang's relative. Miss Zhuang did not return home that night and as very few families had telephones at the time, she did not contact her family.
5.Early the following morning Miss Zhuang returned home and her father beat her. When her father left the house, she escaped from home and came to my place. I consoled her and asked her to stay with me, but she said that her father had friends in the Police Station and they would come and search my house and create trouble.
6.Because of that situation we decided to travel and come back once her father had calmed down, so that we could talk to him. We went to Hangzhou for two days. I did not know that during these two days Miss Zhuang's father got the Shanghai Police Station to surround my home as if I were a dangerous murderer.
7.When I returned home, I was detained by the police without any idea why. They forced me to sign a statement without any questioning. I was kept in detention for three months, which, in China at the time was not only applicable to criminal matters. This happened in July 1983 and from then on my inhumane treatment commenced.
8.In August 1983 a political movement started in China. On the night of 19 August 1983 more than a hundred thousand people were caught. During a very short period of two months, several hundred people were executed. I remember the first sixty people who were shot. There were many cases of false accusations and injustice.
9.At the time I was charged, but there was no basis whatsoever for the charges. During the interrogations, the police told me that the communist party policy was that if I told the truth, I would not be severely punished, but if I failed to co-operate, I would be punished. I was told that, irrespective of whether the matter was big or small, the main concern was my attitude and if my attitude was not good, I could be put in jail for eight years or 20 years.
10.My answer to this was that the communist party also required that the findings be made on fact and on law. I did not think I breached any law, why should I accept blame. After that the officer beat me, put handcuffs on me and hang me in a dark room in jail for two days for 'self-questioning'.
11.I was beaten and I was forced to admit the charges. They charged me with hooliganism as they could not find a suitable charge for me. They kept me in jail until the end of the year and then sentenced me for seven years.
12.During the trial I was told by the judge that if I hugged, kissed or had intercourse with a female before marriage, that constituted rape. Also at that time there were no dancing halls in China and my dancing and drinking with friends at the hotel where my relative stayed was in breach of the law.
13.The hearing of my case was held in secret and there were no witnesses or people's assessors present. My mother paid for a solicitor but he only said a few sentences before the judge stopped him and said that the hearing was over and I was going to be sentenced. The whole hearing took about ten minutes.
14.After the hearing I asked my solicitor to appeal, but he persuaded me not to because there were many cases where the original sentences of seven months were increased to fifteen-year sentences only because the person appealed.
15.The solicitor disagreed that I should appeal, but I insisted. According to the Chinese Penal code, the period of appeal is 15 days. My appeal was answered in three days and it seems that nobody looked at my case.
16.Because it was believed that my attitude was not good. I was sent to Xingjiang where the hardened criminals were kept. There was no law there and the savage abuse and heavy labour caused many people to commit suicide by cutting the veins, injections in the heart, cutting off fingers, taking eyes out and jumping from buildings. There was a suicide every two days.
17.My supervisor saw that I was an honest person and he let me out of prison ten months earlier. Accordingly to the government policy, former inmates of Xingjiang could not return to Shanghai but, gradually, the society and some governmental officers realised that many mistakes were made and they let us go back to Shanghai.
18.I also note that comments relating to my penal certificate. In order to obtain a passport and travel to Australia, I approached the local police station and obtained a certificate indicating that I had no criminal record, on the basis of which I was issued with a passport. Such certificates are issued in a sealed envelope, so I was unaware of its contents when submitting the certificate to the Public Security Bureau for the issuing of the passport.
19.Once in Australia I made an application for permanent residence. I was required to obtain a penal certificate and I asked a friend to obtain a Notarial certificate of good conduct from the Notary Public. As far as I am aware, it was a duty of the Notary Public to confirm with the local police authorities whether or not I had any criminal convictions.
20.At no time had I provided any false information to the authorities, I did not attempt to conceal my previous conviction and I was not aware that my certificate had been cancelled.
21.When I completed the application forms for permanent residence in Australia, I had not indicated that I had a criminal conviction. In doing so, I relied on the fact that I was issued with a penal certificate. Because my conviction was politically-motivated and due to the change in China's policy I genuinely believed that my conviction was no longer valid or relevant. I had no intention of misleading the Australian authorities.
22.I concede that I have provided misleading information concerning my period of employment. I understand that what I have done is wrong and I apologise for misleading the Department of Immigration. I can only note that such information is not relevant to my relationship with Jun Bao, which is genuine and ongoing. She is aware of my past misconduct and fully supports me.
(g) G26, page 226, is a communication by the Shanghai People's Government Foreign Affairs Office addressed to David Wilkinson, which in its English translation reads as follows:
SHANGHAI PEOPLE'S GOVERNMENT FOREIGN AFFAIRS OFFICE
I refer to your fax requesting verification of the notorial certificate issued by Chang Ning District Public Notary Office, Shanghai, numbered (97)H.C.Z.W.M.Z.D.3857.
After verification, it was found that Wang Sheng Hong was sentenced 7 years in jail and was removed political rights for 2 years for hooliganism in 1983. Wang Sheng Hong provided false documentation to Chang Ning District Public Notary Office when applying for the said certificate. The notary officer concerned had neglected to investigate, which resulted in incorrect content of the notorial certificate. The relevant authority has now cancelled the notary certificate (97)H.C.Z.W.M.Z.D.3857 and the decision has been sent to Wang Sheng Hong.
With my respects.Fan Yu Fei (signature)
Vice Director
Consular Division
Foreign Affairs Office
Shanghai People's Government
10 January 2000
(a) At the very core of this matter is the conviction and sentence, in respect of the Applicant, in China in 1983. According to the judgment (Exhibit A1) he was convicted for indecent behaviour and sentenced to a term of imprisonment of seven years; that sentence was subsequently reduced by 10 months for good behaviour. Although not stated in the judgment, the Applicant was also deprived of political rights for 2 years; (see G26, page 226).
(b) G26, page 226 refers by contrast to a conviction for "hooliganism". G26, page 226 is the English translation of G26, page 227 (in Chinese). The interpreter, Ms Su, when asked to translate the relevant word said that it could be translated as "scandalling", presumably a reference to "scandalous behaviour". This resulted in some debate involving Ms Su, as to what precisely this means. Ms Su said that in China, particularly at the time the Applicant was convicted in 1983, any sexual conduct outside marriage between a male and a female would be termed, as she put it, "abnormal", and by which inferentially she meant "scandalous".
(c) The evidence as to what gave rise to the conviction by the Applicant was not easy to comprehend, perhaps and in part because of difficulties in translation. He said that he had had relationships with foreign students; he said also that his girlfriend at that time had relationships with foreigners. The crux of the matter may be that after he and his girlfriend drank too much one evening they stayed overnight at the home of the girlfriend's aunt. The girlfriend's failure to go home that night incurred the ire of her father who had sufficiently influential connections with the Chinese police to be able to bring about a charge against the Applicant.
(d) At the trial the Applicant was not, according to his evidence, able to say very much; similarly his lawyer was restricted to brief statements; (see clauses 8 and 9 of Exhibit A8). He said also that no evidence was led before the People's Court. As he described it, his trial was reminiscent of a Russian show trial in the Stalinist era.
(e) This Tribunal is of course hampered by the fact that it has neither a transcript of the trial nor sentencing reasons.
(f) Throughout his evidence, the Applicant consistently contended that he never was a "criminal". He appealed (unsuccessfully) and intended, after his release, to bring a further appeal to have the conviction quashed, but was dissuaded from doing so by his family.
(g) This Tribunal is precluded from questioning the fact that the Applicant was indeed convicted of a crime and sentenced to a prison term of seven years. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court (per Branson, Lindgren and Emmett JJ) said (at 244-245):40 The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
41 There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
42 Counsel for the respondent submitted that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence. We reject the submission and, as explained later, we do not understand Davies J to have gone so far in Beckner.
43 Wood J found that it was the respondent who inflicted a stab wound to the heart that was a direct cause of the death of the Deceased. His Honour considered that the jury, having rejected the respondent's statement from the dock must, by their verdict, be taken to have accepted the evidence of two police officers. His Honour considered that the jury verdict in that regard was entirely understandable. He went on to say:"To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence."
44 It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts. It may be that his Honour would still have sentenced the respondent to imprisonment for a period of not less than one year. Be that as it may, the basis upon which he imposed the sentence that satisfied the requirements of s 201(c) of the Act is impugned by the reasoning of the Tribunal.
45 To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
46 While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.
47 We do not accept the submission of counsel for the respondent that Beckner stands as authority to the contrary of the foregoing. In Beckner, Davies J was simply recognising that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing Judge will assume greater importance before the Tribunal, and that the Tribunal should allow further evidence to be given in relation to those matters to allow them to be considered more fully. His Honour did not say, nor do we take him to have meant, that the Tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.
48 In so far as the Tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under section 200, the Tribunal erred in law.
(h) That said, it must be noted that SRT (supra) is concerned with judgments of a court. There is a basic difficulty confronting the Tribunal as regards the conviction in China. In the first place the court appears to have been a Chinese People's Court and this Tribunal does know whether it is a court, as that term is understood in Australia. As indicated previously, the Tribunal does not have a transcript or sentencing remarks. It has only the (somewhat confused) evidence of the Applicant who said that he was wrongly convicted, and thus did not at any stage think of himself as a criminal. The manner in which the trial appears to have been conducted (on the evidence before me) leaves this Tribunal with considerable doubts as to whether the Applicant was accorded procedural fairness (as that principle is understood in Australia).
Fundamental to this matter, however, is the finding of this Tribunal that a sentence of seven years for "indecency" or "hooliganism" or "scandalous behaviour" is not one which would occur in Australia.
(j) The Tribunal asked if any inquiries had been made of the authorities in China. The Applicant sought legal advice from a law firm in China, but could not afford the charge (US$2,000) which was demanded; (see Exhibit A10). The Tribunal must, in the absence of any clear evidence to the contrary, accept that the Applicant was sentenced to a term of imprisonment for an offence which, if punishable at all in Australia, would not in all probability have resulted in a custodial sentence and in circumstances where prima facie procedural fairness was denied.
(k) The Tribunal is not, in my view, precluded from finding that the Applicant may well have been very harshly treated, and that, in all events, much more harshly than would have occurred in Australia. What in any event is a Peoples' Court of the nature described? Are the judges persons with legal training? The Tribunal inclines to the view that SRT (supra) may be distinguishable on the basis that the Full Federal Court intended to refer to a court in which proper procedures are followed and in which the judges are trained lawyers. It is emphasised that the Tribunal does not know how the "Peoples' Court" in question was constituted; however its full title and its method of procedure does not lead the Tribunal to be confident that it was a court as that term is understood in Australia and other western countries.
(l) The Tribunal, in doing the best it can in the circumstances, finds that the charge probably did involve something of a sexual nature; it was also probable that it was regarded in China as an act far more serious than would have been applicable in Australia.
As to the evidence of the Applicant:
(a) He is a presentable and quietly spoken man. After high school he had two years in a college (apparently equivalent to a TAFE), culminating in the grant to him of a graduate diploma in construction.
(b) The Applicant was in 1996 working for Shanghai Herzhen Machinery Company ("employer"), which manufactured air compressors. He came to Australia, so he said on behalf of his employer to investigate the possibility of business for his employer in Australia. He came to Australia with another employee who had little English. The Applicant had virtually none. Why then were two non-English speaking employees sent to Australia, to investigate business opportunities? The Applicant spoke of two business meetings on behalf of his employer shortly after his arrival. If he was pursuing business opportunities for his employer his efforts were desultory in the extreme. The other employee went back to China at the end of 1996; the Applicant told his employer that he did not wish to return and according to his evidence drew no further remuneration. The Tribunal has doubts as to whether the Applicant came to Australia as a genuine business migrant. It is not surprising that Mr Bill Doszpot, of DIMA, in a memorandum dated 9 January 1997 (G5, page 77), said that he did not think that the Applicant was a genuine business applicant in the following terms:
. . . . Mr Wang was interviewed on 2.1.97 regarding his reason for coming to Australia. He stated that he was here with another person Qin Feng born 3.2.64, to purchase an air compressor(s). he stated that he had met with Mr Shen of Harvard International on one or two ocassions (sic) but the equipment was not suitable. He has conducted no further business in Australia since his arrival in August 1996. His business partner Mr Qin has applied for and been granted a 456 extension visa valid until 31.3.97. I am of the opinion that Mr Wang is not a genuine business visitor to Australia. . .
(c) The Applicant had known Ms Bao previously in China; they first met and had a relationship in 1980. On the day of his arrival he met her in the exit area of Sydney Airport and moved in with her a day later. The Applicant's evidence was that their reunion was co-incidental and Ms Bao gave evidence to that same effect; (she said that she had made enquiries in China of her school friends as to his progress). All of this is of course the stuff of romantic fiction, and would not be out of place in a novel by Barbara Cartland or Georgette Heyer, but the Tribunal has grave doubts as to whether it was so co-incidental.
(d) The business migration visa application was not before the Tribunal, and the Tribunal does not know whether any untruthful statements were made in order to obtain it. How did the Applicant obtain a passport? He said, fairly enough, that the authorities in China were aware of his conviction and nevertheless granted his passport application.
(a) The Applicant's Statement of Facts and Contentions, quoted earlier in these Reasons (at paragraph 3(a) above), refers to a number of visa applications by the Applicant. Of all of them, two of them are of particular relevance.
(b) The first application of particular relevance for the purposes of this hearing was a visitor's visa applied for in December 1996 and where the Applicant was advised by Mr Di Lizio, a solicitor. The Applicant's evidence was that Mr Di Lizio asked him about convictions. When the Applicant told Mr Di Lizio about his conviction referred to in Exhibit A1, Mr Di Lizio replied that a sentence of 7 years would be taken very seriously in Australia (being the sort of sentence which is imposed for a very serious offence) and that the Applicant should answer the question in the negative. This is a very serious allegation because if it is true, Mr Di Lizio was not merely complicit in a breach of section 234 of the Act; he actually instigated it. To make a finding against Mr Di Lizio without hearing from him would be unfair, but the Respondent may feel that it deserves investigation. Whatever role Mr Di Lizio played in the lie, the Applicant must take responsibility for it.
(c)The Applicant employed, in succession, the services of a number of migration advisers; Mr Barlow assisted him in respect of the second relevant application, a spouse visa application in 1997. The application required information as to the Applicant's work record. The Applicant furnished Mr Barlow with information which was false; the names of the companies furnished were correct, but the dates were not. The Applicant was seeking to conceal his lengthy period in prison.
(d)G6, page 91 sets out a question as to convictions; the question read as follows:
Have you ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
In answer to that question the Applicant replied in the negative. The Applicant in his evidence claimed (more than once) that he had not been asked by Mr Barlow, whether he had any convictions. However, when referred to clause 13 of Exhibit A8 he said that he was asked whether he had committed any crimes and that he had denied that he had. This seemingly subtle distinction is important. The Applicant contended from the outset that he had never committed a crime; he said that if he had been asked whether there were any convictions he would not have answered in the negative. The Applicant's evidence in this regard was not satisfactory. He denied moreover that his application had been (as appears from the document itself) attested by a Ms Kok on the date of its execution. The Tribunal has no reason to doubt that it was so attested.
(e)The Applicant's evidence as to when he told Ms Bao of his conviction was also inconsistent. Clause 20 of Exhibit A8 is to the effect that he did not tell her at the end of 2000 and that he did not do so because the offence involved "other girlfriends". That statement may be contrasted with clause 14 of Exhibit 11 (the report by Dr Sid Williams), which reads (in part) as follows:
Another very significant reason Mr. Wang gave for not disclosing his conviction was because he had not at that time told his wife about it. He had wanted to tell her early in their relationship in Australia, but found it hard to choose the right moment. Then, the longer they were together, without his having told her, the more difficult it became. Finally, some time early in 1999 he told her, spurred into action particularly by her visit to China in June 1999 . . .
The Tribunal does not believe that clause 20 of Exhibit A8 is true; Mr Bao is now 41 years old with two failed marriages behind her. She would hardly have thought ill of the Applicant for having relationships with other women before they were reunited.
(f) When the Applicant first arrived in Australia the box on his incoming passenger card as to whether he had "any criminal conviction/s for which the sentence/s (whether served or not) totaled twelve months imprisonment or more" was ticked in the negative. The Applicant said he could not speak any English and left it to the "air miss". Since the flight was a China Airways flight the airhostess was (presumably) Chinese. Would she have completed a form without asking the relevant questions? The Tribunal thinks that it is just possible, but not very likely; and indeed so unlikely (particularly in the light of the Applicant's later false statements) that it can be, to a large extent, discounted.
(g) It is likely on a balance of probabilities that the Applicant was guilty of a number of breaches of section 234 of the Act; the maximum penalty prescribed for breaches of section of the Act is such that these offences must be regarded as very serious.
(a) Ms Bao's evidence was relatively uncontroversial, leaving aside the Tribunal's doubts as to the "co-incidental" nature of her reunion with the Applicant.
(b) Ms Bao has a son (now aged 12 years) who lives in China with her parents. She said that she had a very difficult childhood with a mother who resented her because she is female and in circumstances where Chinese people conventionally prefer males. The attitude of her parents and particularly her mother to her son by Mr Bao is very different, although she said that she now wishes to bring her son to Australia; (Ms Bao is now an Australian citizen).
(c) Ms Bao is a watchmaker by training. She is not working at present because, so she said, jobs in her trade are scarce in Australia, and for that matter in China also; she said that this is so because people often no longer go to the expense of repairing watches (other than expensive watches) simply because it is uneconomic to do so. She has been supported by the Applicant and this was so until he was taken into the Villawood Detention Centre in April 2001. Prior to being in detention, he was running his own granite business, but which is, because of his detention, now dormant.
(d) Ms Bao is anxious to have a child by the Applicant; however to do so in China would offend against China's one-child policy. I cannot admit her evidence as to the drastic consequences of having a child in China, in breach of China's law, because there was no written evidence (in conformity with section 500(6H) of the Act) before me and the effect of that section is that I cannot admit evidence of that nature unless it was supplied in conformity with that section. But I am entitled, in my view, to take notice of the fact that China would, having legislated such a policy, not have failed to provide sanctions in case of breach.
(e) As to whether the miscarriage in March 2001 was caused by the stress of the Applicant's detention is doubtful, since his detention occurred in April 2001, but a contributing cause could have been the refusal of the visa. That miscarriage was the third of three miscarriages.
(f) Ms Bao said categorically that she would not go back to China, even if the Applicant is forced to do so. One has to wonder why not. Her family lives in China; so for that matter does the family of the Applicant. Her economic circumstances in Australia are not good; she depends on the Applicant, who judging by his work history in his spouse visa application is able to obtain employment quite easily. As to her firm desire to have a child by the Applicant, it must be said that her conduct in relation to her son by Mr Bao does not indicate a very strong maternal instinct, although against this must be set the fact that she did give evidence as to difficulties in relation to her first husband, who, according to her, gained considerable financial benefit at her expense from orders of the Chinese courts at the time of the divorce.
(g) The hardship factor in this matter is not as great in my view as has been found to exist in many spouse visa cases coming before this Tribunal. (Reference is made in this regard to cases cited in Re Awa and Minister for Immigration and Multicultural Affairs [2001] AATA 504, referred to later in these Reasons below.)The evidence of Dr Williams was directed to the health, physical and mental condition of Ms Bao and was otherwise of marginal relevance. Dr Williams' report (Exhibit A11) is open to a degree of (mild) criticism insofar as it expresses views as to whether the Applicant would be liable to contravene any law. Leaving aside the fact that the statement in question is quite remarkably broad, it is doubtful whether Dr Williams is fully aware of the extent to which breaches of section 234 of the Act have taken place.
Mr Poynder said nothing of references in the G documents supporting the spouse visa application. G6, page 138 is part of a statement by a friend of the Applicant, Fang Ping, and which is plainly incorrect in that it refers to the Applicant in 1988 in terms which are clearly inconsistent with his then being in jail. The relevant sentence reads "I knew Mr Wang in Shanghai in 1988 at a friend's wedding party".
G26, page 226, states that the Applicant furnished false information in order to obtain a "no conviction" notarial certificate. The Applicant denied that he had done so; as he put it, he obtained such a certificate but thought that the authorities were (belatedly) of the view that he had committed no crime. That statement was disingenuous. But at the same time there is no evidence that he furnished false information to the authorities who after all were in possession of all relevant records. However, to use that notarial certificate without qualification was probably imprudent.
I note that DIMA became aware of the Applicant's conviction and sentence (as referred to in Exhibit A1) in consequence of an undated "dob-in" letter, but stamped 12 May 1999, (G15, page 198) which reads as follows:
DEAR SIR/MADAM
SHENG HONG WANG DATE OF BIRTH 13 JUNE 1962, HE COMES FROM A TOWN SHANG HI IN CHINA, HE WAS IN JAIL SEVEN YEAR, HE WAS CRIMINAL IN A HIM FORMS TO CERTIFY THAT HE WAS NOT A CRIMINAL, HE APPLIED FOR A VISA ONE MANTH (sic) HE TOOK UP HIM RESIDENEY IN AUSTRALIA AND MEET HIM DEFACCTO (sic) GIRLFRIEND AND KNOW LIVES IN AUSTRALIA SYDNEY.
PLEASE CHECK(a) I next turn to consider the "Direction - Visa Refusal and Cancellation under Section 501 – No.17" ("the Direction").
(b) Mr Poynder very fairly conceded that on any basis the Direction constitutes policy to which I must have regard.
(c) I have previously held that the Direction is binding on me, notwithstanding the recent Federal Court judgments in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. (I have not previously commented on an even more recent judgment in Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648.) I refer in this regard to paragraph 6 of my decision in Re Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496 (and repeated in Re Awa (supra) at paragraph 3(d)) as follows:6. (a) I now deal with the "Direction – Visa Refusal and Cancellation under section 501 No. 17" ("the Direction"). The Direction was made under section 499 of the Act and is in its terms expressed to be binding on all decision-makers, and including this Tribunal.
(b) It is convenient at this point to consider a recent judgment of the Federal Court in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. That judgment of Dowsett J was handed down on 4 May 2001. I became aware of it on the day prior to the hearing and arranged for my associate to phone the representatives of both parties, in order to give them notice that it might be relevant.
(c) Paragraphs 32 and 34 of the judgment in Aksu (supra) read as follows:32 In my view, the Minister was not bound by the Direction. He had the unfettered discretion conferred by s 501. If he treated himself as bound by it, then he erred. Given his adoption of the briefing paper as his reasons, it seems that he did so. However he was entitled to give such weight to the various factors, as he thought appropriate. Had he simply chosen to place more weight upon the so-called primary considerations than upon other matters, having regard to the facts of the case, there could have been no criticism of the decision. However it is clear that his decision as to the pre-eminence of the primary considerations was not based upon his assessment of this case. According to the briefing paper (and therefore according to his reasons) he has chosen to proceed upon the basis that a consideration which is not a primary consideration cannot be more important than a primary consideration simply because the policy says so.
….
34 The Minister's adoption of the briefing paper implies his adoption of the "binding" nature of the Direction as to weight. It was submitted that he should be taken to have known that he could depart from the Direction should he so choose and to be aware of his own powers. However if that were so, and if he had turned his mind to the matter, one would think that he would have perceived the need to make it clear in his reasons that he did not consider himself to be so bound. He would not then have adopted the briefing paper. It is an inescapable conclusion of his adoption of it that he proceeded in accordance with it. This must inevitably have included acceptance of the allegedly "binding" nature of the Direction. It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. In my view this fettering of the discretion constituted an error of law for the purposes of par 476(1)(e) of the Act.It would seem that in Aksu (supra) the Respondent Minister made the relevant decision personally and that he did so by reference to, and on the strength of a briefing paper; it would seem also that that briefing paper may not perhaps have been in all respects complete. It is clear though, that the Minister considered himself bound by the Direction, which was of course, a Direction of his own making. The Court however, came to the conclusion, as set out above, that the Direction was not binding on the Minister. This leaves open the question of whether, assuming the Direction is not binding on the Minister, it is binding in accordance with its terms on a delegate of the Minister or this Tribunal. It may be arguable that, if the Direction is not binding on the Minister, it is equally not binding on his delegate or on the Tribunal which, after all, stands (so to speak) in the shoes of the Minister.
(d) The opening portion of the judgment in Aksu (supra) sets out a list of cases considered by His Honour. It does not cite the judgment of the Full Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, which would appear to indicate that the Tribunal is bound by the Direction. Rokobatini (supra) was, it is true, concerned with a different direction, although also one pursuant to section 499 of the Act, and at a time when section 499 was in a slightly different form. However, the Tribunal considers that it is authority for the proposition that where the Minister issues a direction under section 499 of the Act, that direction is binding on the Tribunal. Paragraphs 16 and 17 of Rokobatini (supra) (at 587) read as follows:16 This submission raises similar, but not identical, issues as are involved in the primary judge's conclusion that the reasons of the tribunal were, in fact, in accordance with the direction. In view of our finding as to the error of law, it is unnecessary to pursue this latter argument to its conclusion. Underlying each is the question as to whether there is any relevant difference between applying the policy on the one hand, or the direction on the other, in the circumstances of this case. Even if the direction did not bind the tribunal at the time of its decision, it will certainly bind the tribunal if the case is returned to it.
17 The most obvious difference between the two is that the direction must be followed by reason of s 499 of the Act, whereas the policy might be taken into account in the manner discussed in various decisions of the court. While this is a radical difference, its significance is lessened, and perhaps eliminated, in the present case as it appears the tribunal may in truth have set out to give effect to the policy.(e) Mr Loftus contended that the judgment in Aksu (supra) in relation to the finding that the Direction was binding on the Minister was obiter, in that it was not necessary for the purposes of His Honour's decision in that case. That argument appears to me, to be tenable. It is also arguable, that Aksu (supra) is distinguishable, in that it turns on a particular facts situation, and where the Minister made the relevant decision in reliance on an incomplete briefing paper.
(f) Assuming, though, that the finding of His Honour as to the binding nature of the Direction was not obiter, and assuming also that Aksu (supra) is not distinguishable, I consider that I should prefer the view of the Full Federal Court in Rokobatini (supra) and hold that the Direction is binding on this Tribunal.
(g) Even if the Direction is not binding, it unquestionably sets out the applicable policy. In paragraph 12 of his judgment in Aksu (supra), Dowsett J refers to the judgment of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 in the following terms:12 Brennan J considered the matter in re-hearing the same matter, reported sub nom Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 - 641:
The Minister is free to exercise that power without adopting a policy as to the standards and values to which he will have regard in deciding particular cases. He is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, providing the policy is consistent with the statute. In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Cooke J (at 1298) held the effect of the relevant authorities to be:
"... that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision."
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute ... . Also, it would be inconsistent with (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be) ... . The Minister must decide each of the cases ... on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion in tact while guiding the exercise of a power ... .(h) It follows then, that at the very least I should treat the Direction as policy, and to which I should, having regard to the decision of Brennan J in Re Drake (No 2) (supra) have regard. I note also that Brennan J in the same case stated that consistency in decision-making is desirable.
(i) As I understand the decision in Aksu (supra), Dowsett J considered that the Direction was invalid because it operated as a fetter on the Minister's discretion. Moreover, so His Honour found, it was couched in language which gave so high a degree of importance to the primary considerations, that it negated the effect of the non-primary considerations. At paragraph 23 His Honour said:
23 The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s.501
The validity of the Direction was considered by Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161. Dowsett J in referring to that judgment said, at paragraph 25 of Aksu (supra):
25 I turn now to the decision of Sackville J in Bustescu. At par 23 of his Honour's reasons, the relevant direction is set out. There are only two primary considerations, namely the expectations of the Australian community and the interests of children. However, it seems that the former encompasses both community protection and expectation of removal. In par 21 of the Direction (see par 25 of the judgment) other issues are considered, including hardship. It is indicated that the Government considers that such matters should be taken into account but given less weight than primary considerations. It seems that there is no provision to the effect that "no individual consideration can be more important than a primary consideration ...". At par 37 et seq, his Honour considered the validity of the Direction, saying:
As I have noted, the applicant contended that the Direction was invalid. That contention was founded on the proposition that the Direction, properly construed, prevents the decision-maker considering the merits of an individual case and was therefore inconsistent with s 200 of the Migration Act ... . According to Mr Game, the Direction has this effect because it provides that considerations other than primary considerations are to be "given less weight than the primary considerations" ... . It follows, so it was said, that where a decision-maker has to weigh a potential deportee's serious criminal record and the consequent expectation that he or she will be removed from Australia (a primary consideration) against hardship to that person (a non-primary consideration), the latter must yield to the former.
(j) Bustescu (supra) was considered by the Full Federal Court in Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698. I refer in this regard to paragraph 29 of the judgment in Lau (supra), reading as follows:
29. It is not necessary to set out parts of the General Direction. It makes clear that it is necessary to balance a number of important factors in reaching a decision as to deportation. A decision-maker is required to have a due regard to the important placed by the government on the two primary considerations nominated, but it states a balancing process should also be adopted, one which takes into account all relevant considerations. It is clear that it is open to a decision-maker to regard the primary considerations as not government the outcome in a particular case. It has been held that the Direction does not have the rigid operations as that for which the appellant contends: Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 (Sackville J). It is apparent that the Tribunal weighed factors affecting the appellant and his family, but that what tipped the balance was the serious nature of the crimes and the likelihood that he might re-offend.
(k) It must always be remembered that the Direction, in its terms states a consideration of the primary considerations alone does not suffice. The second, third and forth sentences of clause 2.2 of the Direction require a balancing process, in the following terms:
…. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the direction to refuse or to cancel a visa….
(l) Clause 2.17 of the Direction, moreover, makes it clear that the other considerations must be taken into account in the balancing process. Nor indeed, does clause 2.17 purport to set out an exhaustive list of other considerations. On the contrary, it states in its terms that "[t]hese other considerations may include".
(m) It follows then that it is conceivable that when weighing all the relevant facts, non-primary or other considerations may be sufficient, depending on the facts, to outweigh the primary considerations and this could occur whether or not any of the primary considerations could correctly be categorised as relevant.
(n) In summary then, the Direction, which in its terms is directed at the Minister's delegates and this Tribunal, does no more or less than require the latter to weigh all of the various considerations, and to come to a decision on the balance of those considerations. I do not think that the fact that some of them are said to be primary requires an interpretation that they are all important, since if this were so, the others would be otiose.
(o) It is then my view that the Direction does bind this Tribunal and, even if it does not, it should be considered as a clear statement of applicable policy.
(a) It would seem then that the Applicant fails the character test. This must be so because of the seven year prison sentence, as to which see section 501(6)(c)(i) of the Act. Having regard to my findings in respect of breaches of 234 of the Act, the Applicant also fails the character test under section 501(6)(c)(ii) of the Act. Mr Poynder contended that under clause 1.9 of the Direction, I must take into account countervailing factors and in this instance the conviction and sentence must be so regarded. As I understood his contention, the fact that the sentence was so out of line with what an Australian court would or might have ruled must be treated as a countervailing factor and so that, so I understood Mr Poynder, the Applicant may not thus fail the character test. (The Applicant's Statement of Facts and Contentions concedes that he fails the character test.) I do not agree with that contention. The conviction and sentence is a fact which I must accept (unless SRT (supra) is distinguishable); (see paragraphs 4(g) to 4(l) above). Similarly, the breaches of section 234 of the Act occurred on a number of occasions and long after the fact of the conviction and sentence referred to in Exhibit A1.
(b) There are two different ways in which the Tribunal could in my view consider the various breaches of section 234 of the Act. On one view, I should regard them as separate and distinct from the conviction, occurring as they did long after it, and take the view that they are very serious (within clauses 1.9(a) and 2.6(c) of the Direction). There is another (and in my opinion preferable) view and that is that they should be considered as part and parcel of the conviction and sentence and in other words as part of one single continuum. Having been convicted and sentenced to a term which was altogether inappropriate in Australian eyes, (and see clause 2.8 of the Direction), the Applicant, in coming to Australia and seeking to remain in Australia, was constrained to lie to DIMA. To do so was reprehensible, but it was in all the circumstances, comprehensible.
(c) In the incoming passenger card the Applicant answered the question as to convictions in the negative. Although I have some doubts as to the evidence in this regard, and in particular as regards the "aircraft miss" it is at least possible that there was a language problem and his version was not totally impossible. As to whether or not Mr Di Lizio instigated the lie referable to the visitor's visa application, the Applicant was complicit and must take responsibility in respect thereof. I refer in this context to paragraph 11 of my recent decision in Re Batula (supra), which reads (relevantly) as follows:
… there have been numerous decisions which have held that in these circumstances the signatory of false documentation must take responsibility for its content. I refer in this context to Deputy President McMahon's comments in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 (at paragraph 30) which reads (in part) as follows:
… there is ample authority that if an agent is engaged and if a form is substantially signed in blank, then a visa applicant may not escape responsibility for what the agent has caused to be written on his or her behalf.
(d) Having lied in his visitor's visa application, it may (as I have said) be reprehensible, but it is understandable that the lie was in effect continued subsequently in the spouse visa application. This is so, both in relation to the work history answer and also in relation in the answer as regards convictions.
(e) It is in this context that I refer to the decision of Deputy President Forgie in Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 and in which she found that although an applicant may fail the character test, it does not follow that the applicant is necessarily a person of bad character. I refer in this context, in particular, to paragraphs 52 - 54 of Re Ly (supra), reading as follows:
52. Those opportunities were obtained initially through Chhun Fong's making false statements and were continued through her maintaining them first in relation to the extension of her visitor's visa and then in relation to her application to remain her permanently. I am satisfied that Chhun Fong knew that she was making the false statements. In doing so, she was in breach of Australia's laws and, in knowing her actions were wrong, she knew that she was in breach of those laws. She was prepared to be in breach of the law first to gain the opportunities and then to protect the avenue which had presented itself to enable her to remain in Australia.
53. Chhun Fong's conduct in relation to her entry and stay in Australia reveal a disposition to place her personal and now her husband's interests above her wider duty to the Australian community to abide by the law. That is a disposition which is not reflected in her day to day relationships but is clearly reflected when regarded is had to the wider community.
54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows as a loyal and caring wife to her husband and as a respectful and gentle person to her friends. Consequently, I find that, for the purposes of the Act, she is not of good character. I repeat what I said earlier and that is that this finding does not mean that she is of bad character.
(a) Having found that the Applicant does indeed fail the character test it is necessary for me to consider the discretion conferred by Part 2 of the Direction. In this paragraph 14, clause references relate to numbered clauses in the Direction.
(b) Clause 2.3 provides that there are three primary considerations as follows:
(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 relationship between a child or children and the person under consideration, the best interests of the child or children.
(c) Clause 2.3 must then be considered in the light of clause 2.5, which reads as follows:
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen 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).
(d) There is no child whose interests need be considered. In particular in this regard, the Applicant has never met Ms Bao's son, who, as set out previously in these Reasons, lives in China.
(e) Notwithstanding the fact that the Applicant's evidence before me was not satisfactory, I do not think that recidivism is a factor which I need take into account. If granted a visa, the Applicant would have no need to offend against the Act again.
(f) As regards the expectations of the Australian community, I refer to the decision of Deputy President McMahon of in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 (at paragraph 34), in which he said that the Australian community would expect this Tribunal to interpret the Act in a humane and compassionate fashion. It seems to me, on the evidence before me, that what we have in this case is an Applicant who was sentenced to a lengthy term of imprisonment for an offence which either would not be an offence at all in Australia, or if it were an offence, would be treated as being of little or no importance. At all events, it would not have attracted a custodial sentence. The Applicant served approximately six years in prison, on his evidence, because he spent the night with a girlfriend. As to what happened on that night, and as to whether there was intercourse between him and his girlfriend was not before me, but does not, in my view matter in that nothing, in Australian eyes, turns on this point. I am inclined to the view that the Australian community would expect me to treat the Applicant compassionately on the basis that both the conviction and sentence and the breaches of section of 234 of the Act should be treated as part of one composite whole, and where, in all likelihood, the Australian community would think that he has been punished more than sufficiently already, for whatever transgressions may have taken place. I note also in this context the comments of Deputy President Chappell in Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551 where he said (at paragraph 59) that in circumstances such as the Applicant in this matter, the Australian community "would display a humane and positive response".
(g) Deterrence also is not in my view a major issue. The facts in this case are on any basis unusual and arguably unlikely to reoccur. Matters such as this invariably turn on their own facts, and this decision is not likely to serve as a precedent which will affect the rights of others. It is often difficult to know how to deal with the question of deterrence given that empirical evidence as to deterrence is invariably and inherently unlikely. But I do not think that this decision, whichever way it went, would have any relevant deterrent effect; the circumstances referable to the Applicant appear to me to be very much of a sui generis nature.
(h) I have found that the hardship factors in this case are not as great as they are in many other visa cases of this nature. There would undoubtedly be hardship to the Applicant were she to be deprived of the company of the Applicant. The medical evidence in this regard is relevant, even apart from her own evidence. But for her to return to China would not be impossible, leaving aside the question of China's one-child policy, which would undoubtedly be a hardship.
Mr Leerdam cited my own decision in Re King and Minister for Immigration and Multicultural Affairs [2001] AATA 103, and where I refused a visa to an applicant who had been convicted of armed robbery and in circumstances where in respect of the hearing before the Tribunal, he was privy to the concoction of false evidence. As Mr Leerdam put it, some of the evidence before this Tribunal by the Applicant fell into the same category. In my view there is a very clear distinction between the deliberate concoction of false documentary evidence, and statements by the Applicant in the witness box, and while under pressure, even if they were unsatisfactory.
(j) On balance then, and given that the primary considerations are not in any way strongly against the Applicant, and might perhaps fairly be described as neutral, the hardship consideration must be given precedence, and so that the Applicant is entitled to succeed. I think it right to mention I did not find this matter easy to decide and it is in fact the sort of case which could be decided in either way. It depends, as I have indicated, on my belief that I should find that the breaches of section 234 of the Act should be regarded as part of a continuum or composite whole in the circumstances set out previously in these Reasons. Another Deputy President might have come to a different conclusion. However, it does seem to me that when a case is so finely balanced that it could go either way, the Tribunal should perhaps incline to the merciful side and find in favour of the Applicant. That is not to say that the Tribunal approves the conduct of the Applicant; on the contrary it does not. The Tribunal considers that it is likely that the Applicant committed a number of serious breaches of section 234 of the Act, aggravated by his (at times) untruthful evidence before the Tribunal. Nor was the Tribunal impressed by his attempts to attribute blame on persons other than himself. But, as I have said, the primary considerations are probably neutral, resulting in precedence to the hardship factor.
The Applicant in his Statement of Facts and Contentions referred to the International Convention on Civil and Political Rights. It was not referred to by Mr Poynder in his closing submissions; it is hardly relevant and in any event is not part of the municipal law of Australia. (This aspect is dealt with in these brief terms as a matter of completeness and in case this decision is appealed or becomes the subject of ministerial intervention.)
In the circumstances, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the Applicant not be refused a visa under section 501 of the Act.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: (signed M Ryan)
AssociateDates of Hearing 19 and 21 June 2001
Date of Decision 26 June 2001
Counsel for the Applicant Nick Poynder
Solicitor for the Applicant Anne O'Donoghue & Associates
Solicitor for the Respondent Leonard Leerdam
C/- Sparke Helmore
3
9
0