Xia and Minister for Immigration and Citizenship
[2007] AATA 1803
•26 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1803
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2608
GENERAL ADMINISTRATIVE DIVISION ) Re AI HUA XIA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal The Hon. R.N.J. Purvis, AM QC, Deputy President Date26 September 2007
PlaceSydney
Decision The decision under review is set aside. The application is remitted to the Respondent for further consideration.
.................[sgd]......................
The Hon. R.N.J. Purvis, AM QC Deputy President
CATCHWORDS
MIGRATION – refusal to grant spouse visa – migration misconduct – use of false passport and identity – false and misleading information in applications for protection visa – worked illegally – false name used for tax purposes and driver licence – Australian citizen spouse and child – children in China – hardship to extended family in Australia – compassionate claims given considerable weight – decision under review set aside
LEGISLATION
Migration Act 1958 – sections 234, 235, 501
CASE LAW
Howard and Minister for Immigration and Multicultural Affairs (2006) 91 ALD 250
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
REASONS FOR DECISION
26 September 2007 The Hon. R.N.J Purvis, AM QC, Deputy President the application
1. The present application brought by Ms Ai Hua Xia (“Ms Xia”) seeks review by the Administrative Appeals Tribunal (“the Tribunal”) of a decision of a delegate of the Minister for Immigration and Citizenship (“the Respondent”) made on 6 December 2006. By such decision, the Respondent refused to grant to Mr Jin Ping He (“Mr He”) a combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa, maintaining that Mr He was not of good character within the meaning of section 501 of the Migration Act 1958 (“the Act”). The discretion available to the Respondent was not exercised in Mr He’s favour.
2. The Respondent, in the statement of reasons for decision, relevantly stated as to character that:
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39. … I have considered all of Mr HE’s conduct since his first arrival in Australia in 1999 until the present, a period of some seven years. For the majority of that lengthy period, Mr HE has been dishonest in relation to the Australian government and the community and has shown a propensity to resort to dishonest conduct in order to pursue his aim of remaining and working in Australia, with little regard for the laws of Australia or the cost to the community of which he now seeks to become a part. I find that the evidence there is of good conduct over the same period is significantly outweighed by the serious nature and duration of bad conduct of a dishonest and fraudulent nature.
40. I find that there are not sufficient countervailing factors or subsequent good conduct to outweigh the serious nature, duration and frequency of bad conduct. I therefore find that Mr HE does not pass the character test…
3. With reference to the exercise of the discretion, the Respondent said:
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PRIMARY CONSIDERATIONS
Protection of Australian Community
Seriousness and nature of conduct
42. The nature of the conduct that Mr HE has engaged in in relation to his dealings with the Department is directly referred to at Paragraph 2.6(c) of the Direction, by “making a false or misleading statement in connection with entry or stay in Australia”. I therefore find that the nature of Mr HE’s conduct over a significant period of time is of the kind considered by the Government to be “very serious”.
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44. The use of false identities to travel internationally completely undermines a country’s sovereign right to determine who can and cannot enter, compromising border security. It is due to actions such as those engaged in by Mr HE that countries such as Australia are committing millions of dollars on increased border security measures, such as biometrics.
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47. Mr HE has committed numerous criminal offences under the Migration Act 1958 and other legislation, including his use of a false name for tax purposes and to obtain a driver’s licence.
48. Taking all of the above into account, including the Direction and the guidance of the AAT in other similar cases, I consider Mr HE’s conduct to be very serious...
Likelihood that the conduct may be repeated
49. Mr HE has been prepared to resort to dishonest and unlawful conduct over a prolonged period of time in order to pursue his personal objectives, and in so doing has shown a blatant disregard for the laws of Australia. He has also demonstrated that he has been prepared to continue using the false identity for tax purposes, driving license and to avoid police action in Australia.
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53. If Mr HE is successful in the current visa application after such a history of dishonest conduct against the Australian community in order to progress his personal objectives, I cannot discount the risk that he will engage in further dishonest conduct in order to obtain other types of benefits...
Deterrent to others
54. The Chinese community in Australia is relatively close-knit, with its own ethnic associations, newspapers and community networks, and the outcome of decisions such as this one are passed around within segments of the community and also between some unscrupulous migration agents. It is through such community networking that people in situations such as Mr HE find out which migration agents are prepared to lodge false or frivolous visa applications or use bogus documents in order to prolong their stay in Australia.
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60. For the above reasons, I have given significant weight to the deterrent value to others in the Chinese community in Australia, and to Mr HE’s family and associates in China, in making this decision…
Expectations of Australian community
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64. The Australian community would not expect people who are dishonest in their dealings with the Australian government and disregard Australia’s laws over such a prolonged period, including traveling (sic) to this country in a false identity and making false protection claims, to be able to benefit from those actions. While the sponsor may expect that the visa should be granted in these circumstances, the broader expectation of the Australian community in my view, as indicated in paragraph 2.12 of the Direction and in the similar cases quoted above, is that the visa would not be granted in such circumstances.
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OTHER CONSIDERATIONS
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87… I accept that refusal of the visa would cause significant disappointment and some disadvantage to both Mr HE and Ms XIA and the infant child. However, I find that any disadvantage they may experience would not be significant enough to outweigh the primary considerations outlined in the Direction, such as the very serious and prolonged nature of Mr HE’s course of dishonest and unlawful conduct in relation to the Australian community of which he now seeks to become a part…
4. Whilst the Tribunal is to consider anew the issues that arise for determination, mention of the above findings assist in directing attention to the significant factual situations commented upon by the Respondent that are relevant to a final decision. In this application, where the primary issues relate to character, and in the event of an adverse character finding, such factual situations are to be re-assessed in the light of all of the material now placed before the Tribunal. The latter, including oral evidence from a number of witnesses including Mr He, is more extensive than that which was before Respondent.
relevant legislation and ministerial direction
5. Section 501 of the Act relevantly provides:
(1) 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.
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(6) For the purposes of this section, a person does not pass the character test if:
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
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Otherwise, the person passes the character test.
6. If the Tribunal finds that an Applicant does not pass the character test, the discretion in subsection 501(1) of the Act is enlivened. In exercising the discretion, the Ministerial Direction, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”), must be followed and applied.
7. The provisions of the Direction that are relevant to the issues are:
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
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· involvement in activities such as … breaches of immigration law; or
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(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non- citizen’s character or conduct or both;
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PRIMARY CONSIDERATIONS
2.3In 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.
Protection of the Australian Community
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2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
a. The seriousness and nature of the conduct
2.6It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
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(c)serious crimes against the Migration Act 1958, including, but not limited to, … using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
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Expectations of the Australian community
2.12The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect.
chronology of relevant events
Date
Event
2 October 1952
Ms Xia’s mother born in China
10 March 1969
Mr He born in China
5 November 1976
Ms Xia’s brother, Xing Xi Xia, born in China
30 April 1979
Ms Xia’s brother, Rong Xi Xia, born in China
23 July 1982
Ms Xia born in China
August 1982
Ms Xia’s father moves to Australia
14 December 1994
Mr He marries Qing He
7 September 1995
Birth of Mr He’s son, Kai Hang He
29 July 1997
Birth of Mr He’s son, Kai Fan He
19 October 1998
Mr He leaves China and arrives in Indonesia
23 January 1999
Mr He enters Australia in the name of Amin Rudy with incorrect date of birth
18 February 1999
Mr He lodges application for protection visa using false name and information from false passport; granted bridging visa
March 1999
Ms Xia enters Australia with her mother and brother Rong Xi
1 October 1999
Application for protection visa refused
29 October 1999
Appeal to Refugee Review Tribunal lodged by letter dated 27 October 1999
28 April 2000
Refugee Review Tribunal affirms decision (decision handed down 16 May 2000)
22 May 2000
Respondent determines Mr He’s case does not satisfy the requirements for consideration of exercise of discretion under section 417 of the Act
20 June 2000
Mr He’s bridging visa expires and he becomes an unlawful non-citizen
May 2001
Ms Xia’s father buys land at Badgery’s Creek
2 July 2001
Ms Xia becomes Australian citizen
Late 2001
Mr He first meets Ms Xia
28 December 2001
Mr He reapplies for a protection visa using his Chinese name with false information and false representations; granted bridging visa
14 January 2002
Mr He again becomes an unlawful non-citizen when bridging visa expires
16 January 2002
Respondent refuses to exercise the power under section 48B of the Act to accept the further application for a protection visa
23 February 2004
Ms Xia’s brother Rong Xi Xia marries Yu Fang Li
19 December 2004
Ms Xia’s father dies
March 2005
Mr He commences relationship with Ms Xia
June 2005
Ms Xia discovers she is pregnant to Mr He
2 July 2005
Ms Xia’s sister-in-law arrives in Australia accompanied by Ms Xia who flew to China to assist her
9 September 2005
Mr He and Ms Xia commence living together
23 September 2005
Mr He detained by migration authorities after being stopped by Police conducting a random breath check; released 24 October 2005
12 October 2005
Mr He divorced from his first wife Qing He
20 November 2005
Mr He and Ms Xia marry
25 November 2005
Mr He departs Australia
5 December 2005
Mr He lodges application for spouse visa at the Australian Consulate General, Shanghai
31 January 2006
Kelly He born in Sydney to Ms Xia and Mr He
25 May 2006
Child born to Ms Xia’s sister-in-law and brother
1 October 2006
Ms Xia and Kelly travel to China for approximately three weeks
6 December 2006
Application for spouse visa refused
factual situation and findings of facts
8. Both Mr He and his present wife, Ms Xia, were born in the People’s Republic of China. They are now 38 years and 25 years of age, respectively. By occupation, Mr He is an electrician, who, when in Australia, was both employed as such and carried on his own business. In China, he is currently working as an electrician.
9. Mr He first married in 1994, of which marriage there are two children; Kai Hang He, 12 years of age, and Kai Fan He, 10 years of age. The birth of Kai Fan led to a fine being imposed on the parents, they having breached the Chinese “One Child Policy”.
10. In 1998, Mr He decided to travel to Australia where he would remain for as long as possible earning money, a part of which he would remit to his wife for her support, and that of the children. He also had the above mentioned fine to pay, and a large debt on account of monies he borrowed to acquire a false passport and visitor visa in Indonesia.
11. Mr He travelled from China to Indonesia where the false passport and visitor visa were arranged. He stayed in Indonesia until January 1999, and became familiar with the language, seemingly sufficient to satisfy Australian Customs officials. He lodged in a house with a number of other Chinese who were also devising stratagems to enter Australia. The false passport was in the name of Amin Rudy and showed a date of birth of 30 October 1968. Mr He was migration cleared in Melbourne under this name on 23 January 1999.
12. Even though the visa did not entitle him to work, within a week Mr He obtained employment on a construction site.
13. Mr He travelled forthwith to Sydney, where he was introduced to a Chinese migration agent. The agent told him that he, the agent, could help Mr He stay in Australia “lawfully with permission to work”. Mr He was told by the agent that the blank forms he was asked to sign were to be in support of a “refugee application”. Mr He says that he did not understand the meaning of the word “refugee”. He was aware, however, that in this application he was using the false passport and false name. He gave a false place of birth, false occupation and false citizenship. The claims made in the protection visa application on which he based his refugee status alleged ill-treatment in Indonesia because he belonged to the “Chinese ethnic group”, and fear of being further mistreated if he was required to return to that country.
14. The application for a protection visa was refused. In his letter dated 27 October 1999 to the Refugee Review Tribunal (“the RRT”) Mr He made some admissions about falsehoods in his original application, including his date of birth. However, while he apologised for the previous deception he perpetrated new falsehoods including claiming he followed “Falun Dafa” in China and, on this basis applied for a protection visa. The RRT affirmed the decision not to grant a protection visa.
15. Mr He sought assistance from another Chinese migration agent in aid of making a further protection visa application, this time using his Chinese name, but still the Indonesian passport and false date of birth. He again recited a litany of lies relating to an alleged involvement in “Fa Lun Kang” in China, and a consequential fear of persecution at the hand of the Chinese authorities. The application was refused. Mr He then remained in Australia working without permission.
16. In late 2001, Mr He met Ms Xia in the course of his work as an electrical contractor. It was not until March 2005, and following the death of her father in December 2004, that a relationship began to develop between them. Mr He began to help out the family in the market garden. At this time he was still married to his first wife, who had the care of their two children. He informed her of his wish to obtain a divorce.
17. Mr He was at this time living in Australia, without a valid visa, and was working illegally. He said he told Ms Xia about his migration status. In June 2005, Ms Xia discovered she was pregnant with her daughter Kelly. Mr He was still married, his divorce not being finalised until October 2005. Mr He and Ms Xia began living together in September 2005, the same month in which he was arrested and detained by migration authorities. He was released on a bond, and married Ms Xia in November 2005. He left Australia in the same month he was married.
18. On his return to China, Mr He lived with his parents and elder son whom he was granted custody of following his divorce from his first wife. He is presently working in a nearby city, and living in a rented room. His elder son is still living with his paternal grandparents. The younger son is living with his mother.
19. Mr He, whilst expressing regret for his past conduct and “seeking forgiveness”, says that he was misled by others, including the original migration agent. Whilst this might suggest that Mr He acted on advice, it does not excuse him for his conduct. He left China, he says, to find work, support his family and pay off the debts which by that time totalled nearly RMB 200,000 - approximately 40 times his yearly wage in China. This may or may not have been so. It is clearly apparent, however, from the evidence that the journey from China through Indonesia to Australia was expensive, carefully planned and involved a number of intermediaries. False documentation was created. Mr He was aware that he was to enter Australia by use of such material and the telling of further falsehoods.
character of mr he
20. It is not maintained on behalf of Mr He that he passes the character test, this on account of his past general conduct referable to his entry into Australia, representations made by him to migration officers and the Minister and his remaining in the country as an illegal resident. He concedes that his conduct was very serious.
21. Mr He failed to depart Australia, and remained living in the country illegally for about four and a half years (20 June 2000 to 28 December 2001 and 14 January 2002 to 24 October 2005). During the period he resided in Australia, he worked without permission; that is, illegally. He arrived in Australia with a false passport and visa, under a false name, and used that name to obtain a driver licence and tax file number. He paid money to obtain the false passport and visa. He made an inaccurate statement to the effect that he did not “intend to live in Australia for the next 12 months”. He lodged a protection visa application in the false name, with false details and with false representations as to his claim for refugee status. His application was refused. He appealed against this refusal, stating he was from China, but again making the false refugee claim. The refusal decision was affirmed. He then applied for a protection visa in his real name, but with the date of birth as shown in the false passport. He again included false statements supporting his refugee claim.
22. There is not any significant evidence of recent conduct. The Tribunal has no hesitation in accepting that Mr He is a person not of good character.
best interests of the children
23. It is patently clear that the best interests of the daughter Kelly will be served by her father living with her in Australia. His presence will provide not only emotional support for her, but also her mother, who is presently dysfunctional in her relationship with the child. The father’s presence will also bring a sense of security to Ms Xia’s family, and ensure a greater degree of financial support than presently is the case. All of this can only be beneficial to Kelly.
24. I have noted the opinions of the social worker and the psychiatrist, as dealt with later in these reasons, when discussing the hardship visa refusal would cause to Ms Xia and others. Their opinions are persuasive.
25. The best interests of the two boys in China will also be affected by Mr He being allowed to enter Australia. The older boy is to accompany his father. This means that he will cease living with his grandparents and not see his mother and brother. The mother has consented to the boy migrating to Australia. The younger son lives with his mother, and has telephone contact with his father. On occasions he sees his brother.
hardship to Ms xia and others
26. Ms Xia is living with her daughter Kelly, her mother, her deaf and mute brother, Rong Xi, and his wife and child, all on the market garden property at Badgery’s Creek. The proceeds from the sale of produce from the garden supports the whole family.
27. Ms Xia arrived in Australia with her mother and brother, Rong Xi, in 1999. She set about learning English, and attended TAFE courses in English and Computing and a course to qualify her as an Assistant Nurse. The attendance continued for four years. She obtained employment at a nursing home and then spent one year in disability care. She maintained her assistance with the market garden. She worked until she became pregnant.
28. Ms Xia’s father had come to Australia in 1982, and thereafter worked as a market gardener, at first on leased land, and after his wife, daughter and son also came to Australia, on land bought by his wife and himself at Badgery’s Creek. Ms Xia had lived without her father until she arrived in Australia at the age of 17. She says she missed her father as a child. Because her mother could not read or write Chinese Ms Xia wrote to her father on the family’s behalf and read her father’s letters to her mother. Both her brothers were born deaf and mute and Ms Xia, herself, has a 30 per cent hearing impediment. Her brothers attended a special school for the deaf which meant they lived away from their mother and sister. Rong Xi’s wife has limited English; they have a son who was born in Australia.
29. It was the practice of the father to remit monies to his family in China. By about 1995 they had sufficient funds to enable them to buy a plot of land and home in that country. The mother worked the land with assistance from her children. Ms Xia’s brother, Xing Xi, now lives in that home with his wife and two sons.
30. As she had in China, Ms Xia, who has some fluency in English although she used an interpreter to give her evidence, reads correspondence, pays accounts and generally deals with the world beyond the family on behalf of all of the family members. The family became dependant on her after her father died. She says that the presence of her husband in Australia will enable the market garden to be more profitable as he would assist in working it as well as earning money as an electrical contractor. At the present time Ms Xia said the family did not have sufficient manpower to farm more than 6 to 7 acres of the 15 acre block of land.
31. Ms Xia maintains that her family in Australia needs her. She has not, she says, thought about living in China because of her family, the members of which rely on her heavily for their interaction with the outside world. In her absence, they would have difficulty in maintaining the market garden. Indeed, Ms Xia’s mother contends that she “cannot allow” her daughter to return to China for a long time because she cannot speak English and relies on her help with the market garden, as well as day-to-day activities such as answering the telephone. If her daughter was not in Australia, she would, she says, “suffer extreme hardship” and have to sell the property.
32. Dr Leo Tsang, a Consultant Psychiatrist, provided a medical report to the Tribunal as to Ms Xia (Exhibit D). Amongst other matters he stated:
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Mrs Xia said prior to December 2006, she did not realize the gravity of her husband’s infringements and the subsequent difficulty they would have with the Department of Immigration. She said she had assumed that the family would be reunited once the formality of processing her husband’s application is completed.
Over the last 7 months, Mrs Xia said she has become irritable with fleeting suicidal thoughts. She said she feels trapped in her situation and burdened by her sense of responsibility for everyone. She said she finds it hard to cope with looking after Kelly and her family.
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Mrs Xia said if Mr He were not allowed to immigrate to Australia, she would be left in an impossible situation. She said she would be torn between the decisions of having to return to China to live with him; or to remain in Australia to look after her mother and her brother’s family. She said she feels very sad with the possibility that Kelly might grow up without having the presence of a father as she did.
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33. In expressing his opinion and comments, Dr Tsang addressed the following matters:
1.From the psychiatric point of view, I consider that Mrs Xia is suffering from an Adjustment Disorder with Depressed and Anxious Mood. It is moderate in severity. This is a result of the uncertainty if her husband, Mr He, will be able to be reunited with the family.
I consider that Mrs Xia’s Adjustment Disorder is to the extent that it is affecting her vegetative functions and her ability to interact with Kelly warmly and lovingly on a day-to-day basis.
At the end of the consultation, I did advise Mrs Xia to consult with her family physician for further help if she finds it necessary.
2.On balance, I am of the opinion that Ms Xia’s Adjustment Disorder will be alleviated if her husband, Mr He, is allowed to be reunited with his family in Australia.
3.If Mr He were not allowed to be reunited with his family, I think it is highly probable that Ms Xia’s Adjustment Disorder will worsen and may well become chronic; as will her ability to provide a continuing loving and warm environment for Kelly to grow up in.
4.I am of the opinion that Kelly will benefit from having the presence, warmth and care of a father for her continuing psychological and emotional development.
If Kelly is forced to have to grow up without the presence of her father, the result is likely to be detrimental for the development of her sense of self and self-esteem.
5.Kelly is also attached to her grandmother, Mrs Cai. I am of the opinion that she would be harmed by having to be forcibly removed from Mrs Cai’s attention and care if she were to have to move to China to be with her father.
6.Mrs Cai is 63 years old. She is barely literate in Chinese and illiterate in English.
Without the support of her daughter, Mrs Xia, Mrs Cai will likely be unable to sustain her work as a market gardener. It is unlikely Mrs Cai will find other independent employment. If Mrs Xia were to move back to live with her husband in China, it is probable that Mrs Cai will become dependent on social welfare in Australia.
7.Mrs Cai will likely be harmed in terms of having emotional and practical disturbances if she were to lose the company and support of her daughter and grand-daughter in the event that they have to go to live in China.
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In summary, I do find compelling compassionate reasons for Mr He to be reunited with his family in Australia. Mrs Xia is dependent on Mr He for her personal and emotional needs.
Kelly will be greatly deprived if she were not allowed to grow up in the presence of her father, both materially and emotionally.
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34. Ms Angeline Oyang, a social worker, interviewed Ms Xia and her family. She spoke to Mr He by telephone. After detailing the background of the family, her awareness of Mr He’s migration conduct, appraising references from Mr He’s employers and associates and noting his community involvement she stated in her report (Exhibit H):
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I am of the view that two extended families (his own family, and that of his wife’s family) are at risk of being condemned to a life of perpetual poverty and emotional deprivation should Mr HE not be allowed to enter Australia.
The life chances of the third generation – AiHua’s one year old daughter Kelly and her cousin Ivan, son of AiHua’s deaf mute brother – will also be affected if Mr HE cannot re-enter Australia. Mr HE’s reunion with his wife and her family is a circuit breaker to poverty and deprivation that otherwise will befall four sets of families, three of which are Australia citizens: Mr HE’s former family, his present family, his wife’s family and the family of AiHua’s brother. Mr HE has married into a tightly knit extended family committed to help each other to combat poverty.
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The family possesses two worn out tractors which are in need of constant repair. They are used to till the land after vegetables are harvested. The family desperately needs an additional hand to work on the land and to grow more vegetables to sell.
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AiHua is the only one in the family who benefits from some education in Australia…
AiHua is therefore indispensable to the household. Three generations of the same family are dependent on her to communicate with the rest of the world. If she leaves them the rest of the family cannot engage in the market gardening work and will have to rely on the welfare system.
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This is a case of a decent hard working extended family trying to break the circuit of poverty and make a fresh start in Australia. The deceased patriarch Mr Xia worked all his life in the market gardening trade and managed to forge a foothold in establishing a business for himself and his family before he died. The responsibility now falls on his daughter who is becoming the head of the household at age 25 because the rest of the family members are all handicapped to some extent. She has found a husband who by all accounts, is a decent, honest and hard working man whose presence in Australia can be a circuit breaker for the four nuclear families bonded together as an extended family.
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other discretionary considerations
35. In light of the character finding, the Tribunal must have regard to the primary and other considerations identified in the Direction, as outlined above, in determining whether the discretion to refuse the visa should be exercised.
36. Mr He perpetrated unacceptable conduct over a period of time, with an awareness of the fact that he was relying on false documentation, the provision of false information and engaging in illegal and improper activities in remaining in Australia and working without permission.
37. From 1999 to 2005, Mr He obtained the benefit of his falsehoods, overtly maintaining the same through his protection visa applications. He was aware of the latter. His character, in a relevant sense, is laid “bare” by his conduct (Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195).
38. The Act is intended to regulate, in the national interests, the coming into and remaining in Australia of non-citizens. Citizens are to be protected from those who have engaged in, and may well in the future engage in, unacceptable conduct.
39. It is true that in the context of “protection of the Australian community”, the Direction refers to the decision-maker, the Tribunal, taking “reasonable steps” to ensure such protection. One such step is to refuse, where warranted, a visa. The instances of conduct identified in the Direction as being serious, include migration misconduct. Mr He engaged in migration misconduct. Where it might impact upon the welfare of the Australian community, the community is, so far as reasonably able, to be protected from it.
40. The misconduct of Mr He was very serious. Whilst the conduct itself is important, it is also the consequences or possible consequences of the conduct that is to be considered. It may be thought that to allow Mr He to enter Australia, in light of his adverse conduct, would negate its seriousness. It would seemingly allow a person to breach the Act, in a reprehensible manner over a period of time, and still be allowed to enter the country. It may be thought that it would allow and encourage others to do the same, to the detriment of the migration system put in place for the protection and betterment of the lawful residents and citizens of Australia.
41. Mr He was approximately 30 years of age when he obtained and used the false passport. He knew, or should have known, that engaging in employment was not permitted. His conduct was in breach of sections 234 and 235 of the Act, and continued for a relatively long period. Whilst it is true no convictions have been recorded against him, he has acted contrary to the provisions of Australian law. On the basis of the evidence before this Tribunal it cannot be said, however, that when the opportunity and relevant circumstances again arise, he would behave as was his habit in the past.
42. If the Tribunal was only considering the above matters it would be reasonable and appropriate to refuse to grant a visa in the subject circumstances in aid of deterring others from engaging in like-minded conduct. Visa regulation and the minimisation of the use of false representations will be assisted if those who avail themselves, or sought to avail themselves of such stratagem, do not succeed in their endeavours. Further, the community expects non-citizens and citizens alike to obey the law. A righteous community would expect a prospective visa holder to proceed to apply for such a visa in accord with the law, and not to engage in nefarious means to sidestep it in order to negate its intent.
43. It is contended on behalf of Ms Xia that the Tribunal should exercise its discretion and set aside the decision under review primarily “because of the effect that a visa refusal will have on his child, his wife and her family”. This consideration, it is said, outweighs all others. There are, it is maintained, very strong compassionate grounds for exercising discretion. Ms Xia, her mother, brother and sister-in-law maintain a vegetable garden as a business. The mother is in her fifties. The brother is without speech or hearing. Mr He and Ms Xia are said to be indispensable to the operation of the market garden. Absence of Mr He would mean that the garden would remain subsistence with the family near to the poverty line. A return to China by Ms Xia would also relegate the family to a life of poverty.
44. The conduct of Mr He was seriously wrong. He used a stratagem which is to be discouraged. The community is entitled to be protected from those who engage in like activities. But it is unlikely he will conduct himself in such a manner again.
45. I am satisfied that the best interests of the children, and especially Kelly, would be the better served if Mr He was to be granted a visa, provisional though it may be. I am satisfied that significant hardship would be experienced by Ms Xia if she is to continue living without her husband in Australia. I am also of the opinion that the whole family is deserving of compassionate consideration. As was stated in Howard and Minister for Immigration and Multicultural Affairs (2006) 91 ALD 250 at paragraphs 122 and 123:
Compassion … is guided by the common good and keeps in mind the claims of other people in circumstances similar to those of the person or group that is the focus of attention. It does not treat some human beings as more equal than others and does not favour those who may seem superficially more appealing. Compassion does not see its recipients as victims, but as agents of their own destiny who at the start may need a little help from those in a position to give it. It is compassion, not sentimentality, that the legislature and the executive government have directed the tribunal to apply when exercising its discretionary power.
46. As in Howard (supra), I am satisfied that the evidence tendered in this application shows that visa refusal would, in this instance, impose hardship on Australian citizens that would be exceptional, both in its extent and its severity. That evidence provides an objective reason for treating this application differently from others involving equally serious breaches of migration law.
47. It is clear on the evidence before the Tribunal that the family unit of grandmother, son, daughter-in-law, two grandchildren, as well as Ms Xia, are in jeopardy. The compassionate claims of the family are to be given considerable weight.
48. Consideration of the best interests of the children, the hardship to Ms Xia and the compassionate circumstances detailed above are such as to outweigh the other relevant considerations.
49. Consideration of the expectations of the community when it is fully informed or all relevant circumstances and the other considerations referred to above outweigh in this case the protection factor earlier discussed.
50. The decision under review is set aside. The application is remitted to the Respondent for further consideration.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. R.N.J. Purvis, AM QC, Deputy President
Signed: ...............[sgd].................................................................
AssociateDates of Hearing 9 and 8 August 2007
Date of Decision 26 September 2007
Counsel for the Applicant Mr N. Poynder
Solicitor for the Applicant Ms J. Vu, Janice Vu & Associates
Solicitor for the Respondent Ms Z. McDonald, DLA Phillips Fox
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