White and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1230

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1230

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/448

GENERAL ADMINISTRATIVE DIVISION		)
Re		Garry White

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date23 November 2004

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker  

Deputy President

CATCHWORDS

IMMIGRATION – subclass 309 spouse (provisional) visa – refusal of visa on character grounds – past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s immigration history – examination of the visa applicant’s stay in Australia including lodging a false protection visa application and working illegally in brothels – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant – found visa applicant did come to Australia on false documents and that it was implausible did she did not know this, she did lodge a protection visa when she knew she was not a refugee, the visa applicant breached her bridging visa conditions because she feared she would be detected, the visa applicant did work unlawfully but was evasive about when she started work and where, she lied about her relationship with her former husband, she made false statements in her spouse visa application and to the tribunal at hearing concerning her sister in Australia and how she arrived in Australia – held the visa applicant does not pass the character test – primary considerations favour the refusal of a visa – decision of the respondent is affirmed.

Migration Act 1958 ss 499, 501(1), 501(6)(c)(ii)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065

Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038

Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

REASONS FOR DECISION

23 November 2004	Professor GD Walker, Deputy President
Summary

1.      The visa applicant, Song Li, who is aged 45 and a citizen of the People’s Republic of China, arrived in Australia on 30 July 1998 on a subclass 456 business (short-stay) visa.  On 17 August 1998, Ms Song lodged a protection visa application which was subsequently refused on 29 September 1998.  On 18 March 1999, Ms Song was granted a bridging visa E pending the outcome of a request for Ministerial intervention. On 18 June 1999, she became an unlawful non-citizen in Australia.  She remained in Australia unlawfully until 8 April 2003, on which date she was granted a bridging visa to depart Australia, subsequently departing on 22 April 2003.  On 24 April 2003, Ms Song lodged an application for a subclass 309 spouse (provisional) visa.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Ms Song obtained a business (short-stay) visa using false documents, she lodged a protection visa application and proceeded through the appeals process even though she knew the application was based on false information and that she did not fear persecution in China, she remained in Australia as an unlawful non-citizen from 18 June 1999 until 8 April 2003 and worked illegally, including at two brothels, and that she breached the conditions of a bridging visa granted to her.  The respondent therefore refused Ms Song’s spouse visa application.  This is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Garry White, was born at Waratah, New South Wales, on 23 June 1962 and is aged 42.  Mr White is currently unemployed.

4.      The visa applicant, Ms Song, who is also known as Jessica Song, was born in Yantai, Shandong Province, China, on 18 November 1959 and is aged 45.  On 26 April 1981, Ms Song married Bing Shi, the marriage ending in divorce on 11 November 1996 (T p81).  One child was born of that relationship, a son, Wei Shi, born 5 May 1982, who is now aged 22, and who lives in China.  On the 9 May 1997, Ms Song married her second husband, Hongcai Wang, the marriage ending in divorce on 11 February 2003.  No children were born of this relationship (T p81).

5.      On 17 July 1998, the Australian Consulate General in Guangzhou, China, issued Ms Song with a subclass 456 business (short-stay) visa valid until 27 January 1999 and, on 30 July 1998, Ms Song arrived in Australia (T p133).  Departmental enquiries later revealed that this visa was obtained by means of fraudulent documents (T p5).  Shortly after her arrival, Ms Song was located working in a brothel in Auburn, New South Wales, but released after questioning because she had a valid visa (T pp37-38).

6.      On 17 August 1998, Ms Song’s then husband, Hongcai Wang, applied for a protection visa naming Ms Song as a member of his family unit also applying for a protection visa (T pp198, 211).  Ms Song was subsequently granted a bridging visa A pending the outcome of her application, valid until 27 January 1999 (T p42).  On 29 September 1998, Mr Wang’s and Ms Song’s protection visa applications were refused (T p239) and on 9 October 1998, Ms Song applied for a review of the decision by the Refugee Review Tribunal (“RRT”) which, on 23 December 1998, affirmed the decision.  Ms Song was notified of the decision by letter dated 24 December 1998 and advised to contact the then Department of Immigration and Multicultural Affairs (“DIMA”) about her status in Australia (T p255).  On 20 January 1999, Ms Song applied for Ministerial intervention.  On 30 January 1999, Ms Song’s visa expired and she became an unlawful non-citizen.

7.      On 17 March 1999, Ms Song was located apparently working in a brothel in Mayfield, New South Wales, and was subsequently detained at the Villawood Detention Centre (T5 pp35-39).  On 18 March 1999, after the lodgment of a security of $5,000, Ms Song was granted a bridging visa E valid until 18 June 1999 (T p133), subject to six conditions including a no-work condition and a condition to report to the department as specified (T p60).  Ministerial intervention was refused on 30 July 1999 and Ms Song was notified of this decision by letter dated 30 August 1999 (T p6).   

8.      On 26 August 1999, DIMA advised Ms Song that she had become an unlawful non-citizen on 18 June 1999 because she had allowed her bridging visa to expire and, because she had failed to report to the DIMA office as directed by the conditions of that visa, her security of $5,000 was forfeited.  Ms Song was asked to contact DIMA by 9 September 1999 (T11 p61).  Ms Song did not contact DIMA but remained in Australia as an unlawful non-citizen until 8 April 2003.

9.      On 10 May 2002, Mr White met Ms Song at a Chinese restaurant at Parramatta, New South Wales, where Ms Song was working, and on 30 May 2002, they commenced living together (T p86).  On 21 March 2003, Mr White and Ms Song were married in a civil ceremony at Fairfield, New South Wales (T p115).

10.     On 8 April 2003, Ms Song applied for a bridging visa E (T13 p65), which was subsequently granted, valid until 22 April 2003 (T pp71, 132).  On 14 April 2003, Ms Song’s then migration agent, Jack Meng, of Jack Meng Immigration Pty Ltd, lodged an application for a subclass 309 spouse (provisional) visa application with the Australian Consulate in Shanghai, China (T18).  On 22 April 2003, Ms Song departed Australia accompanied by Mr White (T15 pp75, 132).   On 7 May 2003, the Australian Consulate General acknowledged receipt of Ms Song’s spouse visa application (T21 p135).  Mr White returned to Australia on 4 August 2003 (T25 p140).

11.     On 22 October 2003, Ms Song was interviewed by an immigration officer at the Australian Consulate in Shanghai (T27 p143).  At that interview, Ms Song said that she paid “someone” 40,000 RMB to arrange all the travel documents for her and that she came to Australia to be with her then first husband who was already in Australia and who had asked her to come to Australia to see him.  She said that she knew that her protection visa application had been refused and that she did not depart Australia when located, as an unlawful non-citizen, by immigration officials because “I wasn’t told to depart” (T27 pp143-146). 

12.     On 13 November 2003, a senior migration officer at the Australian Consulate advised Ms Song that she was considering refusing her visa application and inviting her to comment and provide information concerning her intentions (T28 p150).  On 28 November 2003, Ms Song made submissions, stating that she did not know that the person who arranged for her to come to Australia with a “visiting group” was “cheating the government and was cheating me as well” (T p153),  although she obtained a job as a “massage worker” at Auburn, her then husband had forbidden her from working and she did not take up the position, that when she was located at the brothel in Newcastle she was only there visiting a friend, it is an insult to her personality to say she is a prostitute, she wanted to return to China because she missed her home, her son, and her mother but her ex-husband would not allow her to go, and that she sought employment so that she could have money to return to China and that she loved her husband Garry White (T pp153-154).  On 1 December 2003, Mr White also made submissions to the department on behalf of his wife (T30 pp155-161). 

13.     On 2 March 2004, Ms Song was interviewed for a second time by a migration officer at the Australian Consulate (T32 p163).  At that interview, Ms Song said that she paid “a friend” 40,000 RMB for her passport and travel papers, she gave her friend her ID and passport and she did not sign any forms.  She did think that 40,000 RMB was a lot of money but she wanted a visa to come to Australia to see her then husband.  She also stated that her ex-husband applied for the protection visa for her even though, she acknowledged, she did not need protection and had a son in China and wanted to return home.  She said that the only work she did in Australia was working in a restaurant in Parramatta, and that the first time she was located in a brothel she had just responded to an advertisement for a massage worker and the second time, she was there visiting a friend.  When questioned about her bridging visa, she stated that she did not comply with the conditions because her then husband told her that if she went to the department she would be detained (T32 pp163-164).

14. On 31 March 2004, having considered Ms Song’s submissions, a delegate of the respondent decided to refuse the grant of a visa to Ms Song on the ground that she did not pass the character test because of her past and present general conduct including that she provided fraudulent documents in connection with her subclass 456 business (short-stay) visa, she knew that she was not a refugee when lodging a protection visa application, she worked illegally in Australia, she did not comply with the conditions of a bridging visa E granted to her, and that she remained in Australia as an unlawful non-citizen from 18 June 1999 until 8 April 2003, and having declined to exercise her discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T33 pp165-175).  On 14 April 2004, Mr White lodged an application for a review of this decision by the tribunal.

15. At the hearing, the applicant appeared in person and the respondent was represented by Ishan Muthalib, solicitor, of Blake Dawson Waldron, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with a supplementary set of documents, taken into evidence as Exhibit R1 and Exhibit R2 respectively, together with the evidence tendered by the parties at the hearing. Mr White gave oral evidence in person and Ms Song gave evidence by telephone from China.

Relevant Law and Policy

16. 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:

…  

(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; …

17. 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.

18. 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.

Issue

20. The issue for the Tribunal to determine in this case is, therefore, whether Ms Song is not of good character having regard to her past and present general conduct so as to be precluded from the grant of subclass 309 spouse (provisional) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence

19.     Mr White gave oral evidence.  Ms Song gave oral evidence via a telephone connection with China.  A Mandarin interpreter was sworn in to assist her in giving her evidence.

20.     The respondent contended that Ms Song did not pass the character test because of her past and present general conduct within the meaning of s 501(c)(ii). She contended that the visa applicant had been involved in activities indicating contempt or disregard of the law within the meaning of paragraph 1.9(a) of Direction No 21 and had made false or misleading statements or declarations within the meaning of paragraphs 1.9(b) and (c).

21.     The first ground for this contention was that when Ms Song first came to Australia on 30 July 1988 as the holder of a subclass 456 business (short-stay) visa, she was not a genuine business visa holder and never intended to do business in Australia.  After her visa was granted on 17 July 1998, the Guangzhou Consulate General discovered that a large quantity of forged documents were submitted with the application for the visa in a deliberate attempt to mislead DIMIA officers.  The department drew this allegation to Ms Song’s attention in its letter to her dated 13 November 2002 (T pp150-151).  In her reply to that letter (T pp153-154) Ms Song did not deny the allegation, but said that the visa application had been prepared by her friend Ms Yan Wang and that she was totally unaware of its contents.  That reply is hard to accept when one bears in mind that she admits paying 40,000 RMB (about $8,000) for the visa and ticket, at a time when she was earning only 500 RMB a month and could have applied for the visa herself at a cost of little more 200 RMB (T p163).  Further, as she admitted at the hearing, she had already applied for and obtained her passport in the ordinary way through the Public Safety Bureau.  It is implausible that she would have paid such a large sum for a visa unless she had known, or strongly suspected, that it was going to be obtained by unlawful means. 

22.     As late as her interview on 22 October 2003 (T p143), she was maintaining that the purpose of her original visit was business.  By the time of her second interview on 2 March 2004, she admitted that she never had any intention of doing business in Australia.  She claimed that the reason for her coming to Australia was to visit her husband, who had come here a month earlier, in company with one of her sisters, in order to “have a look” at Australia.  Again, it is hard to accept that she would have paid so much for a visa simply in order to visit her husband, who had only been away for a month.  The respondent contended at the hearing that Ms Song was a party to a plan concerted between Ms Song, her husband and her sister, to settle in Australia permanently without the necessary approvals.  While not inconsistent with the evidence as it stands, that proposition cannot be taken to have been proved. 

23.     The visa applicant also provided false information on the passenger card which she completed on the flight to Australia (T p176).  She gave her occupation as “manager”, when in fact she was working as a teacher at a kindergarten operated by a watch and clock factory for the children of its employees.  She also ticked the box giving as her main reason for coming to Australia as attendance at a “convention/conference”.  That statement, as she admitted at the hearing, was also untrue.

24.     The respondent’s second ground was that Ms Song had lodged a protection visa application with false claims.  She admitted at her second departmental interview on 2 March 2004 that she was not a genuine refugee and did not need any protection (T p163).  She also falsely stated her occupation as being a “manager” with the Yan Tai Clock and Watch Co (T p215).  She claims she did not sign the application, but her signature does appear on it (T p232) and her present husband, the applicant Mr White, identified it at the hearing.  She also signed the application for review of the decision by the RRT (T p251), which maintained the original false claims for refugee status.

25.     The third ground relied on by the respondent is that the visa applicant remained in Australia for an extended period as an unlawful non-citizen.  The first period was from 28 January 1989 when her bridging visa A expired, until 18 March 1999, when she was granted a bridging visa E, a period of nearly two months.  Much more serious was the second period, from 19 June 1999, when her bridging visa E expired, until 7 April 2003, when she was granted a bridging visa E, a period of nearly four years.  The visa applicant does not dispute these allegations, but says that she had wanted to return home, partly in order to attend her mother’s funeral, but her then husband did not want her to go (T p154).  Be that as it may, it does not explain the first period of her unlawful stay, which came to an end only after she was apprehended and detained at a brothel in Newcastle.  At the hearing, however, she explained her unlawful stay from 19 June 1999 to 7 April 2003 by saying that she breached the reporting conditions in her March 1999 bridging visa E because she feared that if she did report, she would be detained.  That is a more likely explanation and it is more consistent with her conduct in failing to make any attempt to regularise her status for almost four years.

26. The fourth ground on which the respondent relies is that the visa applicant worked in Australia without lawful permission to do so, while an unlawful non-citizen, in breach of s 235 of the Act. Her bridging visa A expired on 27 January 1999, and since then she has not been granted work rights. Nevertheless, it is clear that she did work illegally in Australia, but for what period is uncertain. In her interview on 2 March 2004 she initially said that she did not work in Australia, then qualified that by saying that she did not work in the beginning, then she said that she did not work until after 2002, following her mother’s death in 2001 (T pp163-164). At the hearing she was evasive about when she started work and repeatedly failed to answer a direct question to that effect, simply saying that her husband did not want her to work.

27.     The respondent states that on 17 March 1999 Ms Song was found apparently working in a brothel in Mayfield, a suburb of Newcastle.  There were two other girls on the premises, one known as May, from Thailand, another known as Sasa, from Shanghai.  The compliance officer’s notes record that she was previously located working as a prostitute in a brothel at Auburn, but no action was taken because her 456 visa was valid.  Records showed that Ms Song had had three customers on that day, at 11.00 am, 2.00 pm and 4.00 pm (T p38). 

28.     The applicant Mr White said in his oral evidence that while Ms Song was living with him in Newcastle, she made several visits to Sydney and would stay a night or two, explaining that she was with her sister Fang.  “I didn’t know what she did on her trips to Sydney”, he said.  Ms Song, however, said that she had only visited her sister once while she was living with Mr White, and that on that occasion she was accompanied by him.  She claimed that she never visited her sister on her own.  When her husband’s account was put to her, she became evasive and claimed that she had sometimes spent the night with another friend, Li Hong, her former upstairs neighbour when she was married to Mr Wang.  She had told Mr White that she was going to stay with her sister because of her poor English.  As the obvious inconsistencies multiplied, she became agitated and angry and claimed that she had been frightened and not known what to say, that she did not understand and could not remember.

29.     The visa applicant denied that she had been working as a prostitute at either establishment.  In relation to the Auburn episode, she stated that she had read an advertisement in a Chinese newspaper seeking someone to work as a masseuse.  She answered the advertisement by going to the business’s address, and there met the receptionist, whose name she happened to remember as being Anna.  As she was standing talking to, or being interviewed by, Anna, the immigration officers arrived.  As regards the Mayfield incident, Ms Song said that she had a good friend by the name of Helen who she used to visit regularly.  Ms Song said that as her husband had been treating her badly, Helen said that she should start making her own money and be rid of her husband.  She said “I’ll take you to my workplace”.  Helen thus invited Ms Song to visit Newcastle where her workplace was located.  Although she said Helen was a good friend of hers, she did not know her Chinese name and no longer has any contact with her.  She said that she thought Helen was conducting a normal massage business.  In the course of her visit the compliance officers arrived and she was detained as she had no visa (T p37).  Mr White gave evidence that he had no knowledge of Helen, nor recognised her name, even though Ms Song said she was a good friend.

30.     The visa applicant’s explanation cannot be accepted.  Strange things do happen every day, and one could not dismiss her explanation for either of the two incidents on its own.  But when an attractive woman is found in two separate brothels in two different cities within a space of a few months, to claim that both incidents were nothing but unfortunate coincidences is to strain credulity beyond breaking-point.

31.     The respondent does not argue that prostitution is itself evidence of bad character, but relies only on the fact that on the second occasion Ms Song was working without a visa.

32.     The visa applicant admitted that she worked at Xiang Men Con restaurant in Parramatta and indeed that is where she met her current husband in May 2002.  At the hearing she said that she worked there for two months and admitted that she payed no tax on her earnings.  She also worked for three months at the Jin Xin restaurant, but the evidence does not show if that was when she had permission to work or afterwards.  As it does not appear that she ever had a tax file number (T p53), her employment history may or may not be complete.  At the hearing Ms Song admitted that she knew that she was working illegally at the restaurant in Parramatta. 

33.     The day after she was detained at the Mayfield brothel, the applicant was interviewed by departmental officers (T pp44-57).  At that interview she falsely stated that she was divorced and that her ex-husband was in China.  She said she had no husband in Australia but had a friend, Hongcai Wang, who was at that time still her husband and was living at Chatswood, New South Wales.  When it was put to her in cross-examination she had made these false statements, she said she had just remembered she had telephoned Mr Wang and that he had told her not to tell the officers about him, and if she did he would expose everything about her.  She was then asked how that was consistent with the fact that on the same day he obtained her release by paying a cash surety of $5,000 and had declared himself to be her husband (T p62).  To that she replied that she was confused at that moment, and could remember some things but not others.  Eventually she admitted that “At that moment I lied”.

34.     On lodgment of the security Ms Song was released on a bridging visa E subject to a condition that she report regularly to the department.  Her failure to report in accordance with that condition constitutes the fifth ground on which the department relies as evidence of her disregard and contempt for the law.  On 18 October 1999 a detention review officer noted that “Li Song failed to report as directed and allowed her Bridging Visa to cease on 18 June 1999.  System records reveal that Li Song has not made any applications to regularise her status in Australia since the expiry of her last visa.  Li Song is an unlawful non-citizen and remains concealed within the community” (T p63).  The officer recommended that the security of $5,000 be forfeited and that was duly done (T p62).

35.     The respondent also relies on the visa applicant’s general failure to observe the truth in her dealings with the department and her conscious disregard of the Commonwealth’s immigration laws.  Even in her spouse visa application, lodged in Shanghai in April 2003, she provided false information.  In response to the question that seeks details of the visa applicant’s brothers and sisters, she listed two brothers, Gang and Yi and two sisters, Ling and Ying.  In fact she has a fifth sibling, a sister Fang, who is married and living in Australia. At the hearing, she denied having a sister in Australia, only admitting this when it was put to her that Mr White had given evidence to that effect.  She explained this omission on the form by saying that her sister did not wish to be listed in the application. When asked the reason for that, she replied that her sister Fang had said that she had not mentioned Li Song in her own visa application (and did not want her false statement to be detected).  Eventually the visa applicant admitted the falsity of her answer to that question on the spouse visa form. 

36.     During her oral evidence as a whole, the visa applicant attempted to explain away inconsistencies, omissions and falsehoods by saying that she did not remember, she did not understand, that she was frightened to tell the truth, that she was confused, and that she suffered from a bad memory caused by a brain injury inflicted by her ex-husband Mr Wang (there is no medical or other evidence to support that claim).  She was by turns angry, lachrymose, agitated and incoherent.  She was an unsatisfactory witness and I judge her evidence to be unreliable. 

37.     The applicant Mr White gave oral evidence.  Mr White, aged 42 was a forklift driver who had formerly worked with Greenleaf Fertilizers until that company had closed down in 1990.  He has not worked in Australia since, although currently he is helping with Meals on Wheels as part of his commitment to Centrelink.  For some period before his father’s death in February 2003, he was receiving a carer’s pension because his father needed extensive assistance. 

38.     Mr White described how he had met Ms Song and how the relationship had developed, consistently with the narrative in his statutory declaration of 14 April 2003 (T p114).  When they began living together in late May 2002, she said nothing about her visa status and he did not ask.  About six months before their marriage in March 2003, they visited a migration agent, William Su.  Although Ms Song had still said nothing to him about her visa, he realised from the first appointment with Mr Su that she was in Australia on an expired visa.  Mr Su also advised them that the first thing they should do was to get married, then have a child and return to China so that a spouse visa application could be made.  They had five or six meetings with Mr Su, but Ms Song wanted to change to another agent and they accordingly went to Mr Deng, who gave similar advice and also urged Ms Song to get divorced as soon as possible. 

39.     Since their marriage, Mr White has visited China three times and has stayed there for a total of about seven months, being accommodated by Ms Song’s sister in Yentai.  He describes Yentai as being about the same size as Newcastle and said “he got on okay there”.  Some of the local people speak English, and there are westerners who work in the Yentai shipyards.  There are also internet cafés.  While in Yentai Mr White obtained a fulltime position teaching English in a private school to students who already had some knowledge of the language.  Although he managed to cope reasonably well, he found some aspects of Chinese life “hard to deal with” and especially did not appreciate Yentai’s bitter winters, during which the temperature on occasions reached minus 18ºC.

40.     Mr White said that until he read the s 501 report, he thought his wife was a restaurant worker and knew nothing about her being caught twice in brothels in Sydney and Newcastle.  He discussed it with her when they were in Shanghai, saying he was upset about it, but she denied it.  He speculates, however, that she may have indeed been working as a prostitute and pointed out that he did not know what she did on her trips to Sydney.  He had often thought that she could be using him to enable her to live in Australia.  Despite his suspicions, he still loved her and she made him very happy.  He had been anguished over the separation, but while he does have doubts, “I wouldn’t just say to her that we’re finished”.  He had come to the tribunal in order to “give her a fighting chance”.  I fully accept his evidence.

Application of the Law and Findings of Fact

41. As stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Ms Song passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

42. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Ms Song does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

43. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

44.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

45.     Before making a decision on whether Ms Song passes the character test, it is appropriate to set out my findings of fact on that issue.  I find that on the evidence the respondent’s contentions are established, namely that Ms Song was not a genuine business visa holder when she came to Australia and never intended to do business here, that she lodged a protection visa with false claims and pursued those claims in her application to the RRT, that she remained in Australia for an extended period as an unlawful non-citizen and worked without lawful permission for at least part of that time, that she deliberately violated the reporting condition in her bridging visa E and that she made numerous false statements in her applications and in her dealings with the department.  She gave false evidence at the hearing before this tribunal.  On the basis of her past and present general conduct she therefore fails the character test.

46. Having decided that Ms Song does not pass the character test by reason of her immigration misconduct, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Ms Song. 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.

47.     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.

48. 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 “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.

49.     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

50. The first factor to be considered 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. I find that the repeated breaches outlined above, especially when taken together, are very serious.

51.      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.  In this case, I conclude that refusal of a spouse visa may dissuade others from committing similar acts and from engaging the services of people who practice immigration fraud, particularly as there is a regular incidence of fraudulent applications and attempted fraud in China (see for example, Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 at paragraphs 112 and 127; Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828 at paragraph 50; Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038 at paragraph 70).

Expectations of the Australian Community

51.     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.

52.     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 in this case.  The visa applicant has followed a course of systematic and serious breaches of the law, starting in 1998 with the submission of a large quantity of forged documents in connexion with her original application for her business visa, which was obtained on false grounds.  This was followed by multiple serious breaches of the several different kinds outlined above and concluded with her giving false evidence at the present hearing.  There is no doubt that the community would expect a visa to be withheld from a person with such a record.

The Best Interests of the Child

53.     The third primary consideration, the best interests of any child under the age of 18 years, is not relevant in this matter as Ms Song’s son is now aged 22.

Other Considerations

54.     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.  A refusal to grant a visa to Ms Song would not disrupt Ms Song’s family because they all, except for the applicant and her sister Fang, live in China (T p82).  Mr White’s mother and two brothers are permanent residents of Australia (T p85).  Mr White’s father passed away on 15 February 2003 (T p144). 

55.     The main circumstance relevant to this consideration is the marriage between the visa applicant and Mr White.  It appears that the couple was advised to get married by their first migration agent, Mr Su, though of course they might well have decided to do so later in any event.  Mr White said that he had often thought that Ms Song could be using him to settle in Australia, but there is no doubt about his feelings for her and the respondent does not contend that the marriage is not genuine.  Mr White was greatly disturbed by the discovery that Ms Song had been found by immigration officials in two different brothels.  He thought it possible that she had been working as a prostitute and mentioned that he did not know what she did on her trips to Sydney.  He was also disturbed by her involvement in immigration fraud and her possible dealings with a “snakehead” in obtaining the fraudulent business visa.  Nevertheless, he wanted “to give her a fighting chance” and seems resolved to continue with the marriage.  If a spouse visa is refused, Mr White will suffer hardship.  He would greatly prefer to have his wife with him here in Australia.  While he is able to cope with life in China and indeed is able to obtain fulltime employment in Yentai as an English teacher, he is unable to come to terms with some aspects of life there, notably the severe winters.  While anyone would feel sympathy for Mr White’s predicament, he was aware of Ms Song’s illegal status at least six months before the marriage and must therefore be taken to have entered into the marriage in full knowledge of the potentially difficult consequences of his choice.  I therefore find that the other considerations in this case do not outweigh the primary considerations favouring refusal of a visa.

56.     The decision under review should be affirmed.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  10 November 2004
Date of Decision  23 November 2004
Representative for the Applicant      Self represented
Representative for the Respondent  Mr I Muthalib, Solicitor