Wiseman and Minister for Immigration and Citizenship

[2007] AATA 1728

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1728

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2622

GENERAL ADMINISTRATIVE DIVISION        )

Re             Robert WISEMAN

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date4 September 2007

PlaceSydney

DecisionThe decision under review is affirmed.

.............[sgd].................................

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – partner visa refused to review applicant’s wife – Character test – visa applicant found to have committed serious breaches of immigration law and to have made false or misleading statements in connection with visa applications – not open to the visa applicant to claim ignorance of breaches as she was a party to the making of the applications – visa applicant fails the character test – Exercise of Discretion – attempts by visa applicant to mislead the tribunal did not suggest that she was rehabilitated – community would not expect a person who has engaged in consistent and sustained abuse of the migration system to be rewarded – other considerations – compassionate claims of review applicant assessed but given less weight as he was aware of the visa applicant’s uncertain immigration status – primary factors of community protection and expectations found to outweigh the other considerations in this case – decision under review affirmed.

RELEVANT ACT/S:

Migration Act 1958 ss 499(1), 499(2), 499(2A), 501(1), 501(6)

CITATIONS

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

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

Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781

Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246

Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22

Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]

Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575

Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145

OTHER REFERENCES

Direction No 21

International Covenant on civil and Political Rights

I.A. Shearer, Starke’s International Law, 11^th edn. Sydney 1994

I Brownlie, Principles of International Law, 5^th edn. Oxford 1998

Johan Norberg, In defence of global liberalism, Policy, winter 2006, 43

REASONS FOR DECISION

4 September 2007	Professor GD Walker, Deputy President
Basic facts

1.      The visa applicant Mrs Chuleeporn Wiseman (formerly Konglua) was born in Bangkok, Thailand on 24 September 1956 and is a citizen of that country.  She arrived in Australia on 26 February 2002 as the holder of a tourist (short stay) subclass 676 visa.

2. On 10 April 2002, she applied for a protection visa, which was refused on 30 May 2002. She applied to the refugee Review Tribunal (RRT) for a review of the decision to refuse her application, but the appeal was dismissed on 1 November 2002. On 27 November 2002, she applied to the minister for reconsideration pursuant to s 417 of the Migration Act 1958 (Cth) (the Act) and on 23 March 2003, the minister decided not to exercise his discretion under s 417.

3.      Some weeks before applying for a protection visa, she met the review applicant, Mr Robert Wiseman, born 23 February 1957.

4.      On 25 February 2003, the visa applicant was located by departmental compliance officers and placed in immigration detention.  While she was in detention, she and Mr Wiseman were married, on 1 April 2003.  She left Australia on 22 April 2003 and a spouse visa application was lodged on 27 June 2003.  After that visa was refused on 15 January 2004, she applied to the Migration Review Tribunal (MRT), which remitted the application to the delegate for reconsideration on 13 July 2005.

5.      The delegate decided to refuse the spouse visa application pursuant to s 501 of the Act on 19 December 2006, and the applicant then applied to this tribunal of that decision.

6. At the hearing, the applicant was unrepresented while the respondent was represented by Ms Katherine Hooper, solicitor for DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents (“T”), Supplementary T documents (“ST”) and Additional Supplementary T documents (“AST”)), taken into evidence collectively as Exhibit R1, together with the other documents tendered by the parties at the hearing.  The applicant as well as his mother and brother gave evidence in person while the visa applicant gave oral evidence by telephone from Thailand.  A Thai language interpreter translated for her.

Issues

7.      The issues in this case are:

(i)Whether the visa applicant passes the character test as stated in s 501(6)(c)(ii); and if not

(ii)Whether the tribunal should exercise its discretion under s 501(1) so as to set aside or affirm the decision under review.

Relevant Law and Policy

8. Under s 501(1) of the Act, the Minister may refuse a visa if the applicant 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 set out in paragraph (c)(ii), as follows:

…

(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; …

…

9. Under s 499(1) of the Act, the Minister may give written 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.

10. 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 of the applicant

11.     At the hearing, Mr Wiseman tendered as his evidence in chief a statement dated 23 April 2007 (Exhibit A1), part of which consisted of comments on the delegate’s statement of reasons (T pp36-48).

12.     He stated among other things that, contrarily to paragraph 12 of the reasons (T p38), his wife had attempted to query the details of what the agent might be submitting on her behalf, but had been assured by her Thai friend named Odd that all was in order.

13.     While it was true that she had not approached the department to ascertain her status and ensure that she remained lawful (T p38, para 13), that was because he himself had telephoned the department and was told that the current visa would remain in force until the minister determined the application.

14.     She had not withdrawn her request for ministerial intervention because they were acting on the advice of their legal representative, and only now knew that the advice he gave them was wrong.

15.     It was his solicitor who had completed the spouse visa application form (T p39, para 17), and she had merely signed where indicated.  Mr Wiseman feels that his wife trusted him to ensure that the papers were correct and that he was the one who had let her down.  “Unfortunately, I put too much trust in my former legal adviser to be doing the right thing” (Exhibit A1, p2).

16.     While it was true that he might possibly be able to adjust to the Thai society and culture (T p46, para 51), that was not the main problem.  The chief difficulty with relocating to Thailand and living there would be earning a regular income.  The local businesses seldom employ foreigners lacking particular skills, which is why many of the Australian expatriates there own their own businesses.

17.     As he has been employed in the pest control industry for the last 25 years, he does not possess many skills outside that industry.  His lack of knowledge of the Thai language and his age make his prospects of employment in Thailand very poor.

18.     He was also concerned about the possible effects on his father if a visa were refused.  His father suffers from a dangerous aneurism and if his health, or that of his mother, were to deteriorate he would like to be in the position of taking care of them himself with the aid of his wife.  That would be impossible if the had to live in Thailand.

19.     He has one sister, but she would be unable to assist because she is epileptic and lives on a disability pension.

20.     While he has travelled to Thailand a number of times, the main reason has been to be with his wife.  For the past two years he has been working at two jobs, for up to 18 hours a day on some days, to finance those regular visits to Thailand as well as to help meet his wife’s expenses.

21.     Mr Wiseman disputes that he married the visa applicant with full knowledge that her remaining in, or migrating to, Australia might be fraught with some difficulty.  In fact, like most other ordinary people, he had very little understanding of migration law.  He knew about the protection visa when they applied to get married in October 2002, but had little knowledge of immigration procedures or of the future difficulties they were now experiencing.  Even when they got married, that was still the position.  The situation was not helped by his legal representative at the time, who was advising them that his wife would have no trouble returning to Australia as his spouse and advised them to lodge the spouse visa application in June 2003, or two months after his wife returned to Thailand.  That was incorrect, but he had trusted his lawyer to be giving him the correct advice.

22.     Mr Wiseman said that it is only in the last year and a half that he has learned so much and has come to understand the great difficulties in his wife’s obtaining a visa to live with him in Australia because of the two unsatisfactory legal advisers he had previously had.

23.     At the hearing Mr Wiseman said that he had become aware of the visa applicant’s protection visa application in 2002, about July or August.  Later he agreed that it might have been April 2002, but stressed that at all events it was after the protection visa application had been lodged.

24.     In the course of a short conversation the visa applicant had told him that her Thai friend Odd (who, Mr Wiseman now believed, must have been working for, or with, the migration agent Billy Sui) had advised her to apply to a refugee visa to prolong her stay.

25.     Mr Wiseman had objected and said that it was the wrong thing to do.  On his understanding, refugee status was for people from countries that were suffering from war, and Thailand was not in that position.

26.     Odd had asked the visa applicant about her past and had asked her to sign some blank forms.  Chuleeporn had queried her about that, but she had replied that it was quite acceptable, and that many people were doing it.

27.     Asked if he thought Chuleeporn was a genuine refugee, Mr Wiseman replied that it was not up to him, and that she actually did have a problem in the past in relation to her political activity in Thailand.

28.     Mr Wiseman had never met Billy Sui and his wife seldom met him, dealing mainly through Odd.  Chuleeporn had met Odd through her temple at Stanmore, which they both attended.  She had told Odd that she had met him and wanted to stay longer in order to get to know him.

29.     He knew little about the RRT appeal other than that Odd had arranged for it to be instituted.  He had little say in the matter as they did not discuss such things in much detail because her English skills at that time were limited and it was difficult for them to hold a detailed conversation.  It was Odd who had told them about the failure of the RRT appeal.

30.     At that time he had not realised that Chuleeporn was signing blank forms or that she had paid first $2,000, and then $1,000, to Billy Sui.  If he had known he would not have approved.

31. It was their later legal representative, David Miller, who had advised them not to withdraw the s 417 application. They had believed him and followed his advice.

32.     In relation to the false answers in the spouse visa application, Mr Wiseman explained that the visa applicant was in Thailand when the form was filled in.  He had gone to collect Mr Miller for a meeting to take place at his house attended by his sister-in-law, her husband Ray Costa and himself.  Mr Miller had ticked the various boxes on the form and Mr Wiseman had not detected the false answers.  The only questions they had answered were those relating to her family, and her sister supplied the necessary answers for those.

33.     He admitted that he had not checked the answers on the form but said that he would not have known what he was looking for.  He now knew that David Miller may not even have been a solicitor, but he had trusted him.

34.     He then took the forms to Thailand and his wife had signed them.

35.     He had made 10 or 11 visits to Thailand, including three or four before he met Chuleeporn.  He loves the country and its people and knows the culture reasonably well.  He cannot speak a word of Thai, however, as it is a very difficult language.  “I’m too old to learn Thai, and I’m not smart enough”, he said.  He can communicate quite well with Chuleeporn if he speaks slowly, but she needs an interpreter for some English conversations.

36.     He has worked as a pest controller for 25 years, had completed a technical college course to qualify for a licence, and later met the requirements for a higher licence that would entitle him to make reports.  He had left school at 14 years and 11 months because he was bored, and had held a number of other jobs previously, including at Ingham Chickens and Austral Cables.  Currently he was working at a second job as a cleaner at St George Leagues Club.

37.     His qualifications could not be transferred to Thailand, and in any event, pest controlling requires a great deal of oral work in communicating with customers, and it is necessary to be able to read addresses.  Even now, after many visits, he cannot find his way around Bangkok, which has many narrow streets and alleys.  The government views with disfavour granting work permits to foreigners and the longest visa he can obtain is 12 months, even though he is married to a Thai.  If he were to establish his own business, he could own only a maximum of 49 percent of it.

38.     He could go to live in Thailand, but it would be very hard because his sources of income are in Australia.

39.     He had not looked into her migration status when they were getting to know each other and they had applied to marry before she was detained at Villawood.  The process had been delayed because, although he had divorced his first wife in 1991, he had never obtained a certificate to evidence it.

40.     Asked about his account of the day his wife was located by compliance officers at the Albert Street, Strathfield brothel (T p312), he denied that she had been visiting a sick friend as he had said at the Bangkok interview on 5 January 2004.  He had dropped her off at the house because she needed to deliver some Thai cosmetics to a friend.  She had some creams that had been sent from Thailand, which Thai women like to use because of their beliefs.

41.     He said he has never lived in Thailand, the longest he has spent there being about 23 days.  In his work he can obtain leave only in June, and sometimes unpaid leave at Christmas.  He normally stays there for two or three weeks each time.

42.     Mr Roy Costa is the brother-in-law of the visa applicant, having been married to her sister for 15 years.  In his statement of 17 July 2007 (Exhibit A2), he said he has always found Chuleeporn to be an honest, caring person and a devoted wife to Robert.  He was aware that she “has made a couple of mistakes”, but he believes she is of good character and possesses strong family values.

43.     If she were to receive a visa, that would help Mr Costa and his wife also, as his wife had been greatly stressed and her health had suffered as a result of the rejections her sister had received.

44.     At the hearing Mr Costa said that he lives at Haberfield with the applicant and has known Chuleeporn for about 10 years.  He did not know much about her immigration conduct, but he had been present when the spouse visa forms were being filled out by David Miller in the presence of Mr Wiseman, Mrs Costa and himself.  He had not, however, made any attempt to keep up with the conversation, as he did not want to be “a busybody”.

45.     The applicant’s mother, Mrs Shirley English, relied on her statutory declaration of 24 December 2003 (part Exhibit A3, T pp243-244) and her letter of 14 July 2007 (part Exhibit A3).  Mrs English, who lives with her husband at Barrabra, New South Wales, some 90 kilometres outside Tamworth, wrote that she had instantly taken a strong liking to Chuleeporn as she was such a vivacious and happy person.  Her son was much more relaxed and happy since their marriage and she was very impressed with the way Chuleeporn took care of Robert in every way.  When she had stayed with them for a week in August 2002, Chuleeporn had treated her “like a queen”, always taking care of matters while encouraging Mrs English to sit down and relax.

46.     Mrs English said that the relationship between her son and Chuleeporn is very genuine and sincere.  She and her husband fully accept her into their family and are very proud to have her as their daughter-in-law.  She considers her to be very honest, trustworthy and a lovable person.  She misses her now that she is away.

47.     At the hearing Mrs English said that if her son had to move to Thailand, she would lose both her son and her daughter-in-law.

48.     Her husband David fully shared her feelings, she said.  He is suffering from Parkinson’s Disease, aneurism and bowel difficulties and she thinks that it would “devastate us all” if Robert were to move to Thailand.  She believed Chuleeporn would be a good asset to the whole family and had already done a great deal of good for it.  She would hate to lose her.

49.     Mrs English did not know a great deal about Chuleeporn’s immigration misconduct and had been greatly shocked when she had been detained at Villawood.  She regards her as being of good character and has not seen a bad side of her.

Evidence of the visa applicant

50.     Because a Thai interpreter was not available on the first day of the hearing, the visa applicant was the last witness to give evidence.  She adopted her written statement of 17 July 2007 (Exhibit A4) in which she stated that she had not intended to mislead the government.  She was not seeking to place the blame on anyone else and accepted the responsibility for her actions.

51.     Mrs Wiseman said she had met Billy Sui only once and that all other dealings were through her Thai friend Odd, who had asked about her past and advised her to apply for a protection visa.  She had queried that suggestion because she had no idea what a protection visa was, but Odd assured her that it was all right and that there would be no problem.

52.     She had thereupon signed a blank form and Odd had done the rest.  All that she had wanted was a visa to enable her to remain in Australia with Mr Wiseman.  “I signed other forms but like I said before I maintain I did not fully understand what was in the papers as nobody cared to explain fully to me”.

53.     She stated that Billy Sui told her nothing about the RRT application.  She did not know that there were incorrect answers in her spouse visa application because she did not read them.  She simply signed where Mr Wiseman had indicated, in places where David Miller had placed a cross.  Mr Wiseman had told her that he had not checked the papers because he trusted David Miller.  She could not explain why the names of all her brothers and sisters were not disclosed and had not been aware that she owed money to the Commonwealth because her husband had handled all those matters.  She regretted her actions and accepted that she had been at fault.

54.     In her telephone evidence at the hearing, she was asked if she had claimed in her protection visa application that she was a refugee.  She replied that she was not sure what she had signed because she could not read it.  She had signed a blank form at the bottom and did not know the form would be submitted to the department as she had not been told anything.  Odd had simply suggested that she sign.

55.     Odd had translated the various declarations that she signed (T pp104-108), explaining their general contents.  She had made a “mistake” by signing the declaration (T p106) swearing that the contents of the documents presented were “the whole truth”, but said she knew nothing about the contents of the documents.  She had signed blank forms because she trusted Odd and wanted to remain with her husband.  She had asked Odd to explain the application to her, which she did.  She had asked Odd if there would be any problem with it, and Odd had said there would not.

56.     Ms Hooper then asked her if she knew she was signing a protection visa application.  Mrs Wiseman replied that she was not sure, she had just been told to sign the documents.  Neither Billy Sui nor Odd told her she was applying for a refugee visa.

57.     The first time she went to Billy Sui’s offices in Chinatown, she had not signed any forms and they had simply discussed the application.  She returned several days later with Odd to sign the documents, but Billy Sui was not there at the time.  She had paid $1,000 and $2,000 in two instalments to Odd for her to give to Billy Sui.  She was not given a receipt.

58.     Odd had not told her that the application was for a refugee visa but said it was simply to extend her stay.

59.     She denied her statement at the interview at the Australian embassy in Bangkok on 27 November 2003 that Odd and Billy Sui had explained to her that refugee status is for people from countries with political problems or war.  She had asked them whether she could apply, because Thailand was not that type of country, but they had said there would be no problem if she did nothing wrong or illegal (T p272).  At the hearing she said they did not explain anything about refugee status but had simply said there would be no problem.

60.     It was then put to her that in her February 2006 statement, she had said that when she had told Odd and Odd’s husband Frank that she wanted to remain longer in Australia in order to get to know Mr Wiseman better, both of them suggested that she should apply for a refugee visa (T p370).  She admitted that they had told her that, but said they had not said she was applying for a refugee visa.  They had said they could organise a visa that would enable her to stay, but for a spouse visa she would need to return to Thailand.

61.     Her attention was then drawn to a passage in the record of her interview on 4 December 2003 in which she had said that her friend at Stanmore (presumably Odd) told her to apply for a refugee visa (T p258).  She had applied for a protection visa only because she wished to stay in Australia with Mr Wiseman in order to come to know him better.  She had not told him about the protection visa application because she did not dare to.

62.     She had also asserted at the interview that at that time, when she had any questions, she consulted her sister.  She had heard from people about refugee visas, and asked her sister about them.  Her sister had said it was not a good visa, but nevertheless she wished to stay longer (T p258).  At the hearing she denied ever having asked her sister about a refugee visa, saying she did consult her but not about the type of visa.  She had not said it was not a good visa, because she knows nothing.

63.     She told Mr Wiseman about the protection visa application a week or two after receiving the bridging visa stamp in her passport, in April or May 2002.  He had been concerned about it, probably because she was not a real refugee, she said(transcript 25 July 2007 (ts)  pp10-11).  She thought he knew more about it than she did, because she did not speak English.

64. At first she said that Mr Wiseman did not know about the RRT appeal, but later said that he did, and also that he knew about the s 417 application.

65.     She said that Odd did not explain anything to her about the RRT application.  Asked how she knew she had applied to the RRT, she said that Odd had said she would phone and had asked Mrs Wiseman not to call her (ts p13).

66.     When it was pointed out that she had signed the declaration (T p117) that she had understood the RRT application, she replied that she had simply signed where told to and in any case only understood the Thai language.  Reminded that an interpreter had also certified on the form that it had been interpreted to her, she replied that she had never met an interpreter (ts p13).  In relation to her statement in support of the RRT application (T pp118-119), she admitted she had never been in the Thai democracy movement but was “just an ordinary person”.

67.     She said she had received no letter from the RRT inviting her to attend a hearing.  She admitted signing the response to the invitation declining the opportunity to appear at the hearing (AST p13), but said she could not read it.  She had never received any notification from the RRT that the appeal had failed.  She knew only because Odd had telephoned her two or three weeks after she had lodged the application, saying that all had been done and fixed (ts p15).  She then said that Odd had not in fact told her that the application had failed (ts p15).

68.     She said she had never sent the letter of 27 November 2002 (T p127) repeating her claims of political persecution and knew nothing about it.  She then added that she did not know if she had written it or someone else had written it for her.  She was just a saleswoman (ts pp15-16).

69.     Ms Hooper put to her that she was an educated woman, and a former travel agent.  She said that she had in fact worked as a travel agent for four or five years, but could only speak Thai and Mandarin, not English.  She had learned Mandarin by listening to her father speak it.

70.     She had remained illegally in Australia after her bridging visa had expired because Odd had told her that she would arrange an extension.  She had not fully understood the endorsement on her passport that stated that the visa would expire 28 days after the decision on the review, but had not sought clarification from the department because she “wasn’t sure” (ts 17).

71.     She did not know that the premises where she was detained in Albert Street, Strathfield were a brothel, having been told they were a massage parlour.  She had been there many times but had only gone inside on that one occasion, when she had been delivering cosmetic creams and powders.  An amount of $100 was owing, and she delivered goods worth hundreds of dollars.  It was not her practice to give receipts for sales, because they were for small amounts.  She paid no income tax because she did not realise she would have to as the amount of money involved was not great.

72.     She denied giving the compliance officers her sister’s Medicare card in order to hide her illegal status, saying that they had found it themselves when they had been searching her handbag.  Asked whether her statement in her letter of 30 March 2003 to the department (ST p53) that she had produced the card to the compliance officers because she had panicked, was a lie, she replied that she was not sure (ts pp18-19).  She had simply been minding the card on behalf of her sister who had departed for Thailand and did not wish to risk losing it on her travels.

73.     She said she had not stated any untruths in the spouse visa application form.  In her spouse visa form, she had ticked the “No” box in answer to a question as to whether she had ever been refused an entry permit or visa in Australia.  She sought to explain that by saying that she had never applied for any visa other than the tourist visa she had obtained for the purpose of visiting her sister in Australia (ts p22).  When it was put to her that she had been refused a protection visa and a bridging visa, she insisted that she had never applied for a visa.  Odd had not told her that she was applying for a protection visa and she did not know that she had.  Asked if she knew whether she had applied for any visa in Australia, she replied that she was not aware (ts pp23-24).

74.     She denied giving a false answer to the question whether she had been asked to leave any country, including Australia (T p174), but then admitted that she had made a supervised departure from Australia and had been sent back because she had done the wrong thing (ts p22).

75.     As regards the false answer to the question whether she had any outstanding debts to the Commonwealth, she said that she had not been aware of the situation because her previous lawyer, David Miller, had organised it.  She had signed the form while in Thailand in the places where her husband had indicated and had not checked the answers because she is unable to read English and her husband did not explain the answers to her, because it was the last day of his stay in Thailand.  She knew the form would be submitted to the department but did not know what it contained.  Although she had previously experienced problems with false claims, she had not checked the answers because her husband had told her that the lawyer had arranged it, and she trusted him or them.

76.     She admitted that when she had married Mr Wiseman in Villawood, she had been aware that she might not obtain a visa as she had “made a mistake”, but had gone ahead with the marriage nevertheless.  If she was unsuccessful in obtaining a visa, she did not know whether her husband would move to Thailand because he does not speak Thai and she runs only a small business.

77.     Asked how they communicated with each other if he spoke no Thai and she had very little English, she said they used hand gestures, easy words and sometimes an electronic dictionary.

78.     She said that her three children, aged 30, 27 and 26 live in Thailand.  Her sister in Sydney visits the family in Thailand every year.  She herself is not working very much, apart from running the small shop from her home, as she is over 55.  Her husband sends money regularly to cover her expenses.

Difficulties with the visa applicant's evidence

79.     The visa applicant’s evidence presents a number of difficulties, including the following:

(a)At the hearing Mrs Wiseman said that neither Odd nor Billy Sui had told her that she was applying for refugee status or a protection visa (and at one point denied ever applying for a protection visa).  But in her signed statement of 17 February 2006, she said that Odd had advised her to apply for a refugee visa so that she could obtain an extension of stay in Australia (T p436).  In her handwritten statement of 13 March 2003, she explained that she had lodged an application for a protection visa and a request for ministerial intervention on the advice of her solicitor (ST p53).  At her interview at the Bangkok embassy on 27 November 2003 she again stated that she had been advised by a husband and wife (presumably Odd and her husband Frank) to lodge a refugee application and added that they explained to her that refugee status is for people from countries with political problems or war.  She had queried whether she would be entitled to apply for a protection visa as Thailand was not in that position, but they had told her that there would be no problem if she did nothing wrong or illegal (T pp271-272).

(b)At the interview on 4 December 2003, she related that she had consulted her sister about applying for a refugee visa, but her sister had said it was not a good visa (T p258).  At the hearing she said she had never consulted her sister about the type of visa and that her sister knew nothing of those matters.  The earlier version seems more likely to be true, and has detail that adds to its verisimilitude.

(c)At all events, she certainly knew within a couple of weeks of lodging the protection visa application that it related to refugee status, because she told Mr Wiseman about it a week or so later (T pp259, 437). She did not tell him immediately because she did not dare to (T p258), presumably because she knew he would disapprove of her making a false application, as in fact he did (T pp437, 447). Nevertheless, she persisted with the protection visa application, the RRT appeal and the s 417 application to the minister in the full knowledge that she was advancing a false claim.

(d)She said that she had signed blank application forms.  In relation to the protection visa supporting statement (T pp96-98), she said she had signed at the foot of blank sheets of paper (ts p4).  But her signature on the final sheet (T p98) is about two-thirds of the way down the page, not at the foot, because the text of the statement ends in the middle of the page.  It would have taken some prescience to know that the supporting statement would end in mid-page and that the signature would have to be placed accordingly.  At the same time, she claimed that she was not sure what was written in the protection visa application because she could not read it, which suggests that the forms had in fact been completed.  The fact that she had to return some days after consulting Billy Sui to sign them also suggests that they had been filled in for her signature.

(e)It was probably because she realised that Mr Wiseman would oppose her pursuing the false protection visa claim that she appears to have initiated the RRT appeal without informing him.  In his statement of 2 October 2006, Mr Wiseman says that when Billy Sui wrote seeking another $1,000 for an appeal to RRT, Mr Wiseman had said to her, “Forget it, let’s pull out of this” and did not contact Sui because he did not trust him.  When a letter arrived explaining that the RRT application had been refused, he was confused: “I had thought that by then we had pulled out of this application and I don’t know how Billy lodged the application with the RRT” (T p465).  His wife must have been the one who paid the $1,000 and gave the instructions, as indeed she indicated.

(f)At the hearing she said she had received no invitation to a hearing at the RRT, but she signed a response to a hearing invitation declining the offer on 28 October 2002 (AST p13).

(g)Asked how she knew that her agent had applied for an RRT review, she replied unresponsively that Odd had asked her not to phone her, saying that she would phone whenever she had anything to report.  But she admitted that she paid an extra $1,000 for the RRT appeal.  When then queried how she knew that the RRT appeal had been dismissed, she again replied unresponsively, saying that about two or three weeks after she had lodged the application Odd had phoned to say that all was done and fixed.  But as the RRT application was lodged on 2 July 2002, and the RRT’s decision is dated 1 November 2002, that cannot have referred to the dismissal of the appeal.  She then said that Odd had not told her that the appeal had failed.  Mr Wiseman, however, said that they did learn of the RRT’s decision from Odd.

(h)She denied having repeated her false refugee claims in the s 417 application, saying that she had been just a saleswoman. She said she had never sent the letter (T p127) and knew nothing about it. When it was pointed out to her that the letter does not state that an agent was involved, she replied, somewhat inconsistently, that she did not know if she wrote it or whether someone else wrote it for her.

(i)Mrs Wiseman repeatedly said that she had no idea what was in the various forms she signed because they were entirely in English, and she speaks only Thai, as well as Mandarin.  Even when communicating with her husband, she has to rely on gestures, easy words and a small electronic dictionary.  Thus in her statement of 17 February 2006, she wrote that “I signed a blank document without reading the instructions on it.  I would not have understood it anyway as my English was and still is quite poor” (T p437).  In the same statement, referring to the spouse visa application, she stated that “I hardly read any English and I did not read the application before I signed it” (T p441).  In her statement of 4 November 2006, she wrote that “I was unable to read the [protection visa] documents in English and nobody told me what was written in the documents” (T p468).  Those assertions are difficult to square with the other evidence.  She worked as a travel agent for four or five years in Bangkok and it is hard to believe that the airline timetables and other necessary materials were all available in Thai.  The letterhead for the firm she worked for is printed in English as well as Thai and the company’s letter of support for her tourist visa is in quite good English (T p141).  Mr Wiseman said at the hearing that he thought he was present when she wrote the letter of 13 March 2003 (ST pp53-54) when she was at Villawood (ts p20), and her handwritten statement of 17 July 2007 (Exhibit A4) also appears to be written by her, ostensibly unaided.  Both letters are in quite reasonable English, and as is well known it is much harder to write coherently in a foreign language than it is to read it.  Her husband says nothing about needing to use gestures, easy words or electronic dictionaries.  He said at the hearing that while she needs an interpreter for some English, he had no difficulty in communicating with her if he speaks slowly.  Her failure to mention her experience as a travel agent when listing her occupations at the interview of 4 December 2003 (T p260) may have been calculated to make her disclaimers of any English skills more credible.

(j)At the hearing and in her statement of 17 February 2006 (T p439), she denied that she had produced her sister’s Medicare card to the compliance officers on the day she was detained and said that they had taken her handbag, opened and searched it.  That was when they found the card that she had been holding in safekeeping for her sister.  But in her response of 13 March 2003, she had said that she produced it to them because she panicked (ST p53).  That earlier version is consistent with the account of the compliance officers (ST p25).  Before the MRT however, she denied giving the officers the Medicare card but said she had given them her Bankcard, but they could find no record of it on the computer (T p426).  They had then searched her bag and found the Medicare card.  Her attempts to deceive also showed that she was aware of her unlawful status.

(k)At the hearing she said that she had visited the Strathfield brothel many times for the purpose of delivering Thai cosmetics, but in her statement of 17 February 2006 she said that she had gone there only once, and that was on the day she was detained (T p439).

(l)Towards the end of her evidence, Mrs Wiseman made the strange claim that she had never applied for a protection visa, a bridging visa or any other visa in Australia.  Shortly afterwards she changed her position, saying that she did not know whether she had applied for any visa.  Both those assertions, however, contradict her statement (Exhibit A4), her letter of 13 March 2003 (T p53), her statements at the interviews of 4 December 2003 (T p258) and 27 November 2003 (T pp271-272) and her statements of 17 February 2006 (T p436) and 4 November 2006 (T p468).  Especially coming from someone who worked for several years as a travel agent in Bangkok , her claimed total ignorance about visas is not credible.  In the February 2006 statement, she also pointed out that “David Miller should also have known that I was refused a protection visa because he acted for me while I was in detention.  I don’t know why this was not in the [spouse visa] form” (T p442).

80.     Those contradictions, implausibilities and changes of story make it impossible to view the visa applicant as a reliable witness.  They also bear on the character test and the exercise of the discretion.

Application of the Law and Findings of Fact

81. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), the visa applicant 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) 31 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).

…

82.     On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).

83.     As Senior Member Ettinger has said, “There must be an honesty and integrity amongst visa applicants on which the authorities can rely 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, paragraph 17).

84. 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 the visa applicant 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.

85. 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)).

86.     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.

87. I find that the visa applicant has committed breaches of immigration law and has made false or misleading statements in connection with visa applications within the contemplation of paragraph 1.9 of Direction No 21. She lodged a false application for a protection visa and a false application for review of the unsuccessful application by the RRT. When applying for the protection visa she signed a declaration acknowledging that she had received advice that her application had no prospects of success, but had decided to proceed regardless. She also signed a declaration stating that she had read the contents of the application and swore that all the information in it was true. She provided a letter with her application to the RRT in which she reiterated the false claims for protection. She lodged a request for ministerial intervention under s 417 of the Act on the basis of similar false claims. When the RRT upheld the decision and the minister refused to intervene, she failed to leave Australia and became an unlawful non-citizen until she was found by compliance officers. When asked for identification she presented to the officers her sister’s Medicare card. She also provided incorrect answers on her current spouse migration application.

88.     There could be mitigating circumstances in relation to the one-month unlawful overstay (see para 13. above), but not the other contraventions.

89.     Although in her statement she purported to accept responsibility for her migration misconduct, in her other evidence she endeavoured to affix the blame to her agents, and to some extent her husband.  But as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, she was a party to the making of the false submissions and maintained their falsity through the various stages that she sought to pursue. It is not open to her to claim ignorance of the position that she was maintaining. Her continued failure to accept personal responsibility for her conduct itself reflects adversely on her character: Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at [32].

90.     The visa applicant’s record of unfounded visa applications, the provision of false information and her attempt to mislead compliance officers are revealing about the visa applicant’s character generally (see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at p195).

91.     There is no evidence of recent good conduct indicating that her character may have reformed, and indeed her numerous attempts to mislead the tribunal in her evidence at the hearing strongly point to the contrary.  Her expressions of regret must therefore be viewed as largely tactical.  It is true that there is no evidence that the visa applicant has broken any other laws in Australia, with the possible exception of tax laws, but her record of migration law violations is serious in itself, and the applicant’s character in a migration sense is central to these proceedings.  The character evidence of Mrs English and Mr Costa cannot be accorded significant weight as they had little or no knowledge of the visa applicant’s migration history.

92.     On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of her past and present general conduct.

93. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether to grant a visa to the visa applicant. In exercising that 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.

…

94.     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.

…

95.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, 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.

96.     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 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.

Protection of the Australian Community

97.     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.  In this case, as was outlined above, the visa applicant has made multiple false or misleading statements in connection with entry or stay in Australia.  She continued to do so in her evidence at the hearing.  It is clear that the visa applicant is a person who will say or sign anything in order to obtain a benefit.  In my view her conduct must be viewed as very serious.

98.     The next issue for the tribunal to consider is the risk of recidivism.  The respondent submits that the visa applicant has demonstrated a willingness to disregard Australian laws, in particular the Australian migration system (but perhaps also income tax law), and that there is a considerable risk the visa applicant will continue to act unlawfully and dishonestly if she is permitted to re-enter Australia.  Mr Wiseman contended that as they were now both in their fifties, it was unlikely that they would “now embark on a life of crime”.  But, as was pointed out above, her attempts to mislead the tribunal in her oral evidence do not suggest that she is rehabilitated and her professions of regret and remorse must be treated with some reserve.  Her regret appears to relate more to the consequences of her actions than to the actions themselves.

99.     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.  Attempts are sometimes made to discount that factor, and it is true that the deterrent effect of a particular decision is impossible to prove in advance.  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.

100.   Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa refusal is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.  Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law.

Expectations of the Australian Community

101.   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.

…

102.   A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11^th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5^th edn. Oxford 1998, 552).  That principle is implicitly confirmed by international human rights treaties.  For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4).  It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).

103.   At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).

104.   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.  Ms Hooper drew attention to the view expressed by Deputy President McMahon in Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575 at [26] that the community would expect that “no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled”.

105.   This application, like all such cases, must be decided on its own facts.  On the evidence in the present case, I consider that community expectations weigh against the grant of a visa to the visa applicant who has engaged in such consistent and sustained abuse of the migration system.

The Best Interests of the Child

106.   In this case there are no children whose interest must be considered under this criterion, though they may be relevant as other considerations.

Other considerations

107.   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 that  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.

108.   Both spouses have immediate family in their respective countries and consequently would need to travel to visit the other half of the family in any event.  Mrs Wiseman’s three adult children would not be adversely affected by visa refusal, indeed it would be easier for them to maintain regular and continued contact with their mother, the visa applicant.  Mr Wiseman’s grandchildren do not live with him or depend on him.  He has no contact with the eldest and keeps in touch with the others by telephone.  Those links would be unaffected whether Mr Wiseman lives in Australia or Thailand.

109.   The visa applicant has no business or other ties with Australia, which is unsurprising, given that she was only here for a year.  She has previously worked in Thailand in quite responsible positions and presumably would be able to do so again.

110.   Mr Wiseman is familiar with Thai culture and has a considerable appreciation for it.  He does not, however, speak Thai.  That would inevitably limit his employment possibilities there, though I note his remark that most members of the sizeable Australian expatriate community in Thailand operate their own businesses.  If a visa is refused and Mr Wiseman elects to remain living in Australia, however, he would be separated from his wife except when making one of his twice-yearly visits to Thailand.  When he retires, it would be easier for him to move to Thailand, but in the meantime reliance on visits, telephone, webcam and other communications would not be a solution that he would regard as satisfactory.  Visa refusal would thus inevitably cause him some emotional hardship.

111.   Mr Wiseman seems a straightforward and well-meaning man.  But in assessing his compassionate claims the tribunal must take into account the circumstances under which the relationship between him and the visa applicant was established, as Deputy President Purvis pointed out in Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145 at para 35.

112.   Mr Wiseman met the visa applicant on 1 March 2002 and became aware in late April or May that the visa applicant had applied for a protection visa, and he suspected from the outset that she was not entitled to it.  Yet he continued with the relationship and ultimately to marriage.

113.   In his statement (Exhibit A1), he disagreed with the proposition that he married his wife in the full knowledge that her remaining in, or migrating to, Australia might be fraught with difficulty.  He submitted that it is wrong to assume that ordinary people fully understand the laws of immigration.  He knew about the refugee visa when they first applied to get married in October 2002, but did not have a great knowledge of the various visas and immigration procedures.  When they did marry, he still did not understand the difficulties they would encounter, as his legal adviser at the time (David Miller) was advising them that the visa applicant would have no trouble returning to Australia to live with him as his spouse.

114. But when they originally planned to marry, in October 2002, Mr Wiseman already knew about the refusal of the protection visa. By the time the marriage did in fact take place, he knew about the failure of the appeal to the RRT, the failure of the s 417 request, the refusal of the bridging visa E and the rejection by the MRT of the application to review the bridging visa E refusal. He of course knew that the visa applicant had been detained at Villawood, and indeed arranged for the marriage to be performed there. David Miller no doubt gave them bad advice, but Mr Wiseman was not given Mr Miller’s name until the visa applicant was already detained in Villawood. It is unlikely that Mr Miller’s advice made matters much worse for Mr Wiseman than they would otherwise have been as a result of his own choices. That does not alter the fact that Mr Wiseman will suffer hardship, but it does reduce the weight that is to be given to it, as was made clear by Deputy President Purvis in Braceros at paras 35, 46 and 50, and by Deputy President McMahon in Dumbrell at para 35.

115.   As was noted above, there is no evidence of rehabilitation or recent good conduct to weigh in the balance.

116.   The primary factors of community protection and expectations thus outweigh the other considerations in this case.  The decision under review is affirmed.

I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   .................[sgd]..........................................................
               R. Wallace, Associate

Date/s of Hearing:  24 and 25 July 2007
Date of Decision:  4 September 2007

Representative for the Applicant:    Unrepresented

Solicitor for the Respondent:           Ms Katherine Hooper, DLA Phillips Fox