Wei and Minister for Immigration and Multicultural Affairs
[2006] AATA 398
•8 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 398
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1474
GENERAL ADMINISTRATIVE DIVISION ) Re Xiu Zhen Wei Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date8 May 2006
PlaceSydney
Decision The decision of the respondent is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – refusal of spouse (provisional) visa on character grounds – past and present general conduct – document fraud – false and misleading information – exercise of the tribunal’s discretion – applicant concedes the visa applicant fails the character test – visa applicant displayed contempt for migration laws – real risk of recidivism – the applicant has long standing psychological problems aggravated by uncertainty to be considered – the applicant’s hardship does not outweigh the other considerations.
Migration Act 1958 ss 499, 501, 501(1), 501(6)(c)(i)
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935
Re Hanna and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 257
Re Iskander and Minister for Immigration and Multicultural Affairs [2002] AATA 226
Re Issa and Minister for Immigration and Multicultural Affairs [2001] AATA 752
Re Lachmaiya and Minister for Immigration and Multicultural and Ethnic Affairs (1994) AAR 148
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
8 May 2006 Professor GD Walker, Deputy President Summary
1. The visa applicant, Hao Wei, aged 45, was born in China and is a citizen of the People’s Republic of China. On 18 April 2002, he applied for a subclass 309 spouse (provisional) visa to reside in Australia with his spouse, the applicant Xiu Wei.
2. The respondent, the Minister for Immigration and Multicultural Affairs, refused Mr Wei’s visa application on the ground that he is not a person of good character including that he provided fraudulent documents and false and misleading information to the department in connection with his spouse visa application. That is the decision to be reviewed by the tribunal.
Issue
3. In this case, the applicant conceded, prior to the hearing, in her statement of facts and contentions, that the visa applicant fails the character test in s 501 of the Migration Act 1958 (“the Act”), because he provided false and misleading information and fraudulently obtained documents to the department. The issue for the tribunal to determine is therefore, whether the tribunal should nevertheless exercise its discretion under s 501(1), not to refuse the grant of a visa.
Background
4. The applicant, Xiu Zhen Wei, was born in Shanghai, China, on 9 September 1950 and is aged 55. Mrs Wei arrived in Australia on 28 March 1985 and is a permanent resident. She married Huigiang Chen on 16 June 1997, the marriage ending in divorce on 20 April 2001. Mrs Wei has two children from a previous relationship who reside in Australia, a daughter, Mi Na Sun, aged 24 and a son, Ma Fei Sun, aged 19 (T p45).
5. The visa applicant, Hao Wei, was born in Urumqi, China, on 26 September 1960 and is aged 45. He is a citizen of the People’s Republic of China. Mr Wei was previously married to Liu Yan Ceng on 19 April 1985, the marriage ending in divorce on 21 February 1999. One child was born of the relationship, a daughter Wei Ting Ting born in 1986 and now aged 19.
6. On 6 February 2000, Mrs Wei travelled to China. On 10 February 2000, Mr Wei and Mrs Wei met at the home of Mr Wei’s sister in Urumqi, Xinjiang, China and they commenced their relationship from this time. On 9 March 2000, Mrs Wei returned to Australia. On 21 May 2001, Mrs Wei’s divorce became absolute (T p93). On 8 December 2001, Mrs Wei again travelled to China and on 14 January 2002, Mr Wei and Mrs Wei were married in Urumqi, Xinjiang, China. Mrs Wei returned to Australia on 6 February 2002 (T p78).
7. On 26 March 2002, Mr Wei lodged an application for a subclass 309 spouse (prospective) visa with the Australian Visa Office at the Australian Consulate, Shanghai (T pp39-56), together with an application for Sponsorship for a partner to migrate to Australia completed by Xiu Zhen Wei as sponsor for Hao Wei (T p68). Mr Wei also lodged with the visa office, a document titled “Civil Mediation Paper of People’s Court of Urumqi Tianshan District” confirming the agreement to divorce between Mr Wei and Liu Yanceng on 21 February 1999. The document also stated that custody of the minor child, Wei Ting Ting born on 1 April 1986 “belongs to Liu Yanceng, and will be bring up by Liu Yanceng” (T p74). The application was acknowledged by the visa office on 18 April 2002 (T p76).
8. On 2 September 2002, Mr Wei was interviewed by an immigration official at the Australian Embassy in Shanghai. At that interview, he said that he and Mrs Wei met in February 2001 at his sister’s house and that in June/July 2001 they began to discuss marriage. At a later stage of the interview, he said that he met Mrs Wei in February 2000 (T p84). He had not told his friends or family that she was 10 years older than he. He said his daughter had not met his wife, they had not spoken at all and he had not told her that he had married (T p85). He said that Mrs Wei had not been back to China since their marriage because of her bad health, having to look after her children and she had had no time to do so. He said that they communicated by telephone at least once per week and by letters. He was unable to answer questions about Mrs Wei’s ex-husband and her children and did not know Mrs Wei’s date of birth. He said that he and Mrs Wei lived together from 10 December 2001 to 4 February 2002 (T p89).
9. On 18 September 2002, a migration officer at the Australian Embassy in Shanghai decided that the visa applicant and Mrs Wei were not in a spouse relationship as defined in the Migration Act 1958 (“the Act”) and that while accepting they were lawfully married, she was not satisfied the relationship is ongoing and genuine (T pp101-107). In particular she noted there was limited evidence about the financial aspect of their relationship, the evidence showed the parties did not live together for two months as claimed by the visa applicant, there was limited evidence about the social aspect of their relationship including that the visa applicant’s only daughter did not know about the relationship, there was inconsistent evidence about when the parties had met, there was limited evidence about the continuing contact between the parties and the visa applicant was not aware of the applicant’s personal circumstances. On 14 October 2002, a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs refused Mr Wei’s application for a spouse (prospective) visa. On 18 November 2002, Mrs Wei appealed this decision to the Migration Review Tribunal.
10. On 27 February 2004, the MRT remitted the matter back to the department with a direction that the applicant meets the criteria for clauses 309.11 and 309.221 of Schedule 2 of the Act relating to a spouse (provisional) visa (Tp110).
11. On 23 March 2004, the Shanghai visa office requested further evidence from the visa applicant in order for his migration application to proceed (T p117). In mid-March 2004 the New South Wales Compliance Cancellation section of the Department received an anonymous allegation that the marriage between Mr Wei and Mrs Wei was contrived (T p154). On 12 June 2004, Mrs Wei wrote to the department, stating that the allegation that her marriage was contrived had caused a mess of her life and that she sincerely hoped the department would investigate it carefully. She stated she had many friends who could prove the genuineness of her marriage, that she did not know the purpose of the person who had written the letter, that her children have grown up and left her and she is now alone except for her husband and she begged for her application to be processed as soon as possible.
12. On 28 July 2004, Mr Lanshan Gao, migration agent, of AuVisAsia Education and Trading Co, informed the department that he was now acting on behalf of Mrs Wei and enclosed for their consideration a medical report from Dr SK Law, consultant psychiatrist, dated 17 June 2004 stating that Mrs Wei was anxious and depressed (T p120). With regard to the anonymous allegation, Mr Gao stated that his client strongly contested the allegation as unfounded and ridiculous and “suspects that the false allegation may have been made by her former migration agent, as she had a dispute with him about agents fees” (T p122).
13. On 2 September 2004, Mr Wei was interviewed by a senior migration officer at the Australian visa office in Shanghai (T8 p83) [departmental enquiries revealed the handwritten date of 21 September 2004 was incorrect (T p12)]. At that interview, he admitted that he had been known by another name up until 1993/1994, namely his birth name Wei Ping Ping, but he had stopped using that name because it sounded “like a girl’s” (T p132). He had also used the date of birth 17 August 1960 until about 10 years ago, but had stopped using that after his parents told him it was wrong. He said his first wife was Liu Yan Ceng and they were divorced in 1999. When asked about his daughter, he said her name was Wei Ting Ting, her date of birth was 1 April 1986, and that she lives in Guangdong province with her mother who has now remarried. When asked why he seemed so unconcerned about the welfare of his daughter, he said “it is useless” (T p133). When asked about the allegations that the marriage was contrived, he suggested it was his wife’s former solicitor because they had difficulty in paying his fees. He also told the interviewing officer that his ex-wife and child had never been to Australia and that he had no relatives in Australia (T p134).
14. On 2 December 2004, the visa applicant sent a letter to the Shanghai office of the Australian embassy which was translated by an officer of that office (T24 p136). Mr Wei reiterated that his marriage was genuine and that “the only thing not genuine in this application is that I obtained 2 marriage certificates through the wrong way. Besides I used my ex-wife’s ID card and asked someone to apply for a divorce certificate and had changed date. I did this since I didn’t want you to know that my ex-wife had gone to Australia. I was afraid that you might doubt my intention to go to Australia. … She also wanted me to change the marriage certificate so that you couldn’t discover the relationship between ex-wife and I. I didn’t submit my real divorce certificate which was issued in 1996. … I knew it was a serious mistake” (T24 p136). He admitted he had made a mistake but hoped to be given a chance.
15. Departmental enquiries revealed that on 24 October 2001, Mr Wei had signed an acknowledgement that he was the natural father of Wei Jie and that Song Jun was sponsoring Wei Jie (date of birth 4 April 1987) to migrate to Australia and that he had no objections to this (T p138).
16. On 23 February 2005, a migration officer at the Australian embassy found that the visa applicant had provided a bogus divorce certificate in support of his spouse visa application, had deliberately concealed his true identity, had concealed the identity of his daughter, had deliberately concealed his ex-wife’s true identity, provided false information about the whereabouts of his ex-wife and had deliberately withheld information relevant to his migration application (T26 pp140-141).
17. On 4 July 2005, an officer of the character assessment unit of the Department of Immigration and Multicultural and Indigenous Affairs advised Mr Wei that she was considering refusing his spouse (provisional) application on the ground that he failed the character test in s 501(6)(c)(i) and inviting him to comment (T27 p142). The department also noted that Mrs Wei had tried to sponsor her former husband Hui Qiang Chen to come to Australia but when that application was refused, they were divorced. Mr Wei did not include that information on his visa application (T p158).
18. By letter received by the department on 9 August 2005 Mr Wei responded to the notice of intention. He stated that he had provided the department with a copy of his family registration showing his previous names and current name so therefore did not mention it at the interview; his correct date of birth is 26 September 1960 but the date of birth on his divorce certificate issued in 1996 was stated as 18 August 1960 so he changed his date of birth to 18 August 1960 to be in line with his divorce certificate; Ting Ting Wei is his daughter’s “nickname”, but her formal name is Jie Wei, her correct date of birth being 4 April 1987; his ex-wife’s name before their divorce was Yanqin Liu but he did not know her new name was Na Liu or he would have put this on the forged divorce certificate dated 1999; he did not mention that his ex-wife and daughter lived in Australia because he thought it would affect his application and that he does not consider them as his relatives because he is divorced; he changed his name from Ping Ping Wei because he thought it was a girl’s name; his wife Xiu Zhen Wei did not receive $40,000 from his ex-wife to marry him; his wife is anxious that they be reunited as soon as possible because of her illness (T29 pp146-147). Mr Wei provided a further medical report to the department from Dr SK Law of 2 August 2006, which concluded that “Mrs Wei suffers from adjustment disorder with depressed mood” (T p145).
19. On 5 October 2005, having considered the submissions of Mr Wei and the information obtained at his interview, a delegate of the respondent decided to refuse the grant of a visa to Mr Wei on the ground that he did not pass the character test because of his past and present general conduct including that he failed to declare he was known by another name with a different date of birth; he provided a fraudulent divorce certificate and upheld this false and misleading information to the MRT and in two interviews with the department; he did not disclose his ex-wife and daughter were known by other names; he declared he had no relatives in Australia when he had signed a approval for his daughter to be included in his ex-wife’s application to migrate to Australia; he provided false and misleading information about when he changed his name; he fraudulently obtained a divorce certificate using his ex-wife’s ID card and then falsified the dates on it, with the knowledge and approval of his sponsor, Mrs Wei because he did not want the department to know that his ex-wife was living in Australia and did not want the department to know of his relationship with his ex-wife; he repeatedly provided false and misleading information to the department and showed a blatant and continual disregard for Australia’s immigration laws, and having decided to exercise his discretion under s 501(1) to refuse the grant of a visa to Mr Wei (T pp7-21). This decision was notified to Mr Wei by letter dated 21 October 2005 (T2 pp5-6). On 21 November 2005, Mrs Wei lodged an application for a review of that decision with the tribunal (T p3).
20. At the hearing, the applicant was represented by Mr Lanshan Gao, Migration Agent, and the respondent was represented by Ms Madhu Dubey, solicitor, Phillips Fox lawyers. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. Mrs Wei gave oral evidence in person and Mr Wei gave evidence by telephone from China.
Relevant Law and Policy
21. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
22. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
23. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Evidence
24. Mrs Wei gave oral evidence in person. Mr Wei gave oral evidence by telephone. A Mandarin interpreter was sworn in to assist them with the giving of their evidence. The applicant did not lodge any witness statements.
25. Mrs Xiu Zhen Wei said that she had met the visa applicant in 2000 through his sister, who she had known in China 20 years ago. She and Mr Wei had come to know each other better through telephone calls and letters, and were married on 14 January 2002. They have lived together for a total of about seven months in all (T p115).
26. Mrs Wei claimed to have little clear recollection of most of the material facts. She could not recall who had filled in her sponsorship form dated 26 January 2002 (T pp68-72). She could not recall writing her letter to the department dated 12 June 2004 (T p119). She could not recall if she had asked Mr Wei to alter the date of his divorce decree, but added that she did not know it would be so serious. She could not recall when he had told her he had changed his name and did not know why he failed to declare his previous name or the fact that his ex-wife and daughter were living in Australia.
27. She said she had become a naturalised Australian citizen in 1991. When it was pointed out to her that she is not an Australian citizen, she said she did not know the difference between citizenship and permanent residency.
28. She also said that she was divorced at the time she met the visa applicant in 2000. Reminded that she was not divorced until 2001, she said she had actually been divorced in 1997 and had subsequently remarried to Mr Wei. When the error was pointed out she said she had been confused.
29. Mrs Wei said she is working full-time at a nursing home in Cabramatta. It is a good position and she performs well in it. She also works casually at a hotel on Saturdays and Sundays. She had, however, injured her lower back at work. A year ago she went to see a psychiatrist because she was miserable, she had experienced an unhappy marriage and wanted her third husband (Mr Wei) to join her. She was also very tired. On the other hand, although she was at one stage addicted to gambling and alcohol, that is no longer the case. She is currently taking three medications, one for sleeping, Panadol for her back condition and a heart medication.
30. She does not have good relations with her two children, who complain that she loses her temper and argues with them. Her son aged 19, who lives with her, is attending a TAFE college. They do not communicate much as he speaks mainly English and her English is not good. She seldom speaks to her daughter, who says that she is “jittery” and accuses her of having physically abused her son.
31. When it was put to Mrs Wei that she was complicit in the visa applicant’s use of forged documents and supplying false and misleading information to the department, she said that she had not done it on purpose and had not realised how serious the consequences might be.
32. Mrs Wei’s general practitioner, Dr Tjeuw, declined to give oral evidence but supplied a certificate from Dr SK Law, a consultant psychiatrist, dated 31 March 2006 (Exhibit A3). He reported that Mrs Wei said she was worried, depressed, forgetful and had spells of palpitations. At times she was irritable and tended to shout at her son. She sometimes felt life was not worth living without her husband and was most keen that he be allowed to join her in Australia. Dr Law noted that “Mental examination revealed she was on and off tearful and distressed” and diagnosed an adjustment disorder with depressed mood. He did not state how long Mrs Wei had been suffering from that condition or what might have caused it, but remarked that he would be obliged if her husband’s application for permanent residence could be considered with sympathy and support.
33. In his Statement of Facts and Contentions (Exhibit A1), the applicant’s representative said that Mr Wei did not want to challenge the department’s findings on his character. He admitted that Mr Wei had failed to declare that he had been known by the name of Wei Ping Ping, DOB 17 August 1960, that he had supplied a fraudulent divorce certificate, failed to include his daughter in his family composition, failed to disclose that she is now in Australia on a permanent visa, failed to disclose his ex-wife’s other name and that she is now in Australia on a permanent visa.
34. At the hearing, however, while conceding that he had supplied a false divorce decree and that he had concealed his ex-wife’s presence in Australia, he denied that he had supplied false or misleading information, or at least knowingly supplied it, in any other respect.
35. As regards the divorce decree, he had approached a company that had a prominent sign in the street where he lives advertising the fact that it supplied forged documents of all kinds. He had used his ex-wife’s identity document without informing her and had arranged with the firm to produce a false divorce order dated 1999 for the sum of about $800, plus a $100 deposit. He also admitted falsely stating that his ex-wife was living in China, explaining that, as with the forged divorce document, he had been motivated by a concern that if the department had known she was in Australia they might conclude that he was involved in a scheme to arrange for the whole family to migrate here. He repeatedly said that his fraudulent behaviour and statements stemmed solely from his concern over his new wife’s state of health.
36. After his second immigration interview in Shanghai on 21 September 2004 (T pp132-134), he had written to the Shanghai consulate the letter dated 2 December 2004 (T p136) admitting that he had used a falsified marriage [actually divorce] certificate and had tried to conceal the fact that his ex-wife had gone to Australia. “I was afraid,” he wrote, “that you might doubt my intention to go to [Australia]” which, as his oral evidence showed, was not his true reason at all. He said he had written the letter because he sensed that the departmental officials were suspicious about his application.
37. As regards the other false and misleading information, his oral evidence was evasive and frequently fell back on claims of a poor memory. He said he could not recall if he had signed his visa application, he could not recall when he had changed his name from Wei Ping Ping to Wei Hao. It was pointed out to him that at his second interview (T p132), he had twice denied using any name other than Wei Hao and it was not until the officer stopped the interview and counselled him about giving false and misleading information that he admitted having used the name Wei Ping Ping, which he had changed because he thought it sounded like a girl’s name. He replied that he had just remembered his earlier name.
38. At the interview he had initially said he had changed his name six or seven years previously, then altered his answer to say that it was at least 10 years previously in 1993. At the hearing he said that he could not recall when he had changed it, but thought it was in about 1999 when he had lost his identity card and had to apply for a new one from the Public Security Bureau (PSB). In relation to his statement that it had been 10 years previously, he replied that he was not sure. He also could not recall if he had withheld his other name in the application.
39. He also said he could not recall when his daughter had changed her name from Wei Ting Ting to Wei Jie. At his second interview he had categorically denied that Wei Ting Ting was known by any other names (T p133). Asked why he had stated her year of birth as 1986 when it was in fact 1987, he replied that it was “maybe a memory lapse”.
40. The visa applicant also said he could not remember whether he had given his other name in his 2002 application (question 14, T p40) and, when asked whether he was thereby hiding his identity, replied that he might have hidden something but wanted to join his present wife and did not want his application to be affected by his ex-wife. He said he could not recall clearly whether at his second interview he had said he had no relatives in Australia nor could he recall whether he had said his ex-wife and child had never been to Australia.
41. One of the matters raised by the department in its notice of intention to refuse the visa dated 4 July 2005 (T pp142-144) was that he failed to declare his daughter as a family member in his application. In his written reply of 5 August 2005 (T pp146-147), he explained that he did not think of his daughter as a family member any more because her mother had been granted custody of her. At the hearing he again attempted to explain away that omission by saying repeatedly that she was no longer a member of his family because his ex-wife had custody of her.
42. He sought to justify his assertion at the second interview that his daughter was living with her mother in Guangdong Province, when in fact they were in Sydney, by saying once again that he did not want his application to be affected by them. He conceded that he had concocted a deliberate plot to enable him to come to Australia, but said that as his new wife was sick, he was desperate to look after her. His wife had known of his deception and had known it was serious.
43. His misstatement about his own date of birth was due to the fact that the PSB had made a mistake when issuing the relevant certificate. He had not declared that his ex-wife had changed her given name to “Na” because she had done so after they had separated and he had not been aware of the change until he received the department’s notice of intention to refuse. Those explanations are reasonably plausible and in normal circumstances might be accepted. In this case, however, as the visa applicant has gone to such lengths to conceal his family links, and possibly his own identity, one could not automatically accept them.
44. Mr Wei said he maintains contact with his wife over the telephone. They have been separated for nearly six years (actually four years) since their marriage, and she had been living alone with her children for between seven and eight years. She is suffering hardship because she is concerned over the success of the application. She works full-time at the nursing home and part-time at a hotel, but recently had a fall at work, injuring her lower back at about the fifth vertebra. When he had informed her by telephone in September 2004 that the spouse visa application had been refused, she lost consciousness and fell, suffering a bleeding nose.
45. When she visited him in China in 2003, she was screaming at night, sleeping poorly and suffering from nightmares. He took her to a nearby hospital where she was diagnosed with depression. He said that if he could be with her he could be her mental as well as financial supporter, and take her to the doctor.
Application of the Law and Findings of Fact
46. As was stated above, the applicant conceded in her statement of facts and contentions (Exhibit A1) that the visa applicant does not pass the character test by reason of s 501(6)(c)(ii) because he failed to declare that he had been known by the name Wei Ping Ping, date of birth 17 August 1960; supplied a fraudulent divorce certificate; failed to disclose his daughter as a member of his family and that she now resides in Australia as a permanent resident; and failed to disclose that his ex-wife was known by another name and that she now resides in Australia as a permanent resident.
47. The issue for the tribunal is therefore whether to exercise its discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa to Mr Wei. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
48. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
49. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
50. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
51. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. As Senior Member Ettinger has said, “There must be honesty and integrity amongst visa applicants so that they are treated fairly and that their claims are assessed by the same standards”: Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246, para 17; see also Re Lachmaiya and Minister for Immigration and Multicultural and Ethnic Affairs (1994) AAR 148, 155-156; Re Iskander and Minister for Immigration and Multicultural Affairs [2002] AATA 226 at para 23.
52. In this case, the visa applicant fraudulently obtained a divorce certificate using his ex-wife’s identity card and then falsified the information contained in the divorce certificate. He did so with the knowledge and support of the applicant. He also provided false information in his interview with the embassy official concerning the names, dates of birth and whereabouts of his ex-wife and daughter, despite being counselled about providing false and misleading information. Specifically, failure to disclose relationships and previous names has been treated as very serious: Re Hanna and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 257, paras 35, 40-41; Re Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485, at paras 13-14, 21.
53. The applicant’s representative, in his statement of facts and contentions (Exhibit A1), stated that the only reason the visa applicant provided the false and misleading information was “to secure a spouse visa so that he could reunite with his wife”, that he feels very shameful, and that he did not disclose the facts relating to his ex-wife and daughter residing in Australia because he had previously been advised they could jeopardise his application. Nevertheless, he was plainly prepared to do anything that he thought would help him to obtain a visa and displayed complete contempt for migration law.
54. Next, the tribunal is to take into account the risk of recidivism in considering the protection of the Australian community. In her statement of facts and contentions (Exhibit R2), the respondent contends there is a significant chance that the visa applicant will engage in similar conduct in the future considering that he provided false and misleading information on more than one occasion.
55. I must bear in mind what the tribunal said in Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714 at para 33:
In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.
56. The applicant’s offences were deliberate, multifaceted and were committed over an extended period. His evidence at the hearing was less than candid and lacked credibility in several material respects. If he were to find himself under pressure in the future, or saw an opportunity to gain a benefit through deception, he could reoffend. There is a real risk of recidivism in this case. The visa applicant’s evasiveness and attempts to mislead the tribunal at the hearing reinforce that conclusion.
57. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. It suffices to say that granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law and that refusing one will send a deterrent message to the appropriate quarter (see Re Chau, supra, at paras 22-25).
58. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, the tribunal, at paragraph 47, described the rationale for that approach in these words:
Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
Expectations of the Australian Community
59. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … 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.
60. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. That expectation weighs against the grant of a visa to the visa applicant, who has engaged in systematic abuse of the migration system for personal benefit: see Re Chau, supra, at para 22.
61. As Deputy President Duncan Chappell said in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 at para 84:
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.
The Best Interests of the Child
62. This is not a relevant consideration as there are no children under the age of 18 years whose interests must be considered.
Other considerations
63. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
64. In this case, the refusal of a visa to Mr Wei would not disrupt his family, all of whom reside in China. It would not disrupt the applicant’s family as they all reside in China (T p100), with the exception of her two adult children, with whom she does not have a close relationship. The application is for a provisional visa, but there is no evidence of rehabilitation, and although he has no criminal convictions the visa applicant’s oral evidence rather indicated that there has been no change in his attitude to migration law.
65. The tribunal was asked to take into account the health of Mrs Wei. The applicant’s representative in his statement of facts and contentions submitted:
The sponsor, Ms Xiuzhen WEI, is suffering from mental disorder due to the lengthy separation from the visa applicant. She was admitted to Fairfield Hospital Emergency Department after she fainted when she spoke to the visa applicant on the phone and was told that the visa application might be refused again. She also became addicted to alcohol and gambling. I submit that it is necessary for the Tribunal to exercise the discretion and grant the visa applicant a spouse visa.
66. A report from Dr SK Law, consultant psychiatrist, dated 20 January 2006, was also tendered (Exhibit A2). Dr Law saw the applicant on 19 January 2006 when she was
… still worried, depressed and forgetful. She has dizzy spells. She was thinking much of her husband … Mental examination revealed she was tearful, dejected and distressed. … I counselled her and I encouraged her to continue taking Deptran 100mg. … Ms Wei suffers from adjustment disorder with depressed mood.
67. A statement was also tendered from Sydney South West Area Health Service dated 20 January 2006 stating that Mrs Wei attended Fairfield Hospital Emergency Department on 23 September 2004 (Exhibit A4). An update report of Dr Law dated 31 March 2006 (Exhibit A3) has been summarised above.
68. The medical evidence does not indicate how long Mrs Wei has been suffering from an adjustment disorder or anything about the etiology of her disorder. The other evidence, however, suggests that she has problems of long standing that in the past caused her to succumb to alcoholism and addictive gambling. Mr Wei said that she displayed psychological symptoms in early 2003 and was taken to a local hospital in China where she was diagnosed with depression. I think it safe to assume, however, that her problems have to some degree been aggravated by the uncertainty over her husband’s spouse visa application and the resulting separation. As Deputy President Estcourt said in Re Issa and Minister for Immigration and Multicultural Affairs [2001] AATA 752, “such matters are powerful considerations to be taken into account when balancing all factors affecting the tribunal’s decision” (paras 39-40).
69. It is also relevant, however, that the review applicant was complicit in Mr Wei’s use of a bogus document and his supplying of false and misleading information to the department (Re Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935, para 26). She is not financially dependent on him and has taken care of herself for the past seven or eight years while she has been living alone with her children, other than for the total of about seven months that she has spent with the visa applicant.
70. On balance I am not persuaded that Mrs Wei’s hardship factors tip the balance in the case in favour of exercising the discretion to authorise the issue of a visa to the visa applicant notwithstanding his bad character (see Re Issa, supra, at para 40).
71. The decision under review must be affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 26 April 2006
Date of Decision 8 May 2006
Representative for the Applicant Mr L Gao, Migration Agent
Representative for the Respondent Ms M Dubey, Solicitor, Phillips Fox
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