Yan and Minister for Immigration and Citizenship

[2007] AATA 1369

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] aata 1369

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601057

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JIAN MING YAN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date25 May 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

IMMIGRATION – refusal to grant visa – person not of good character – character test – application of Ministerial directions – making false or misleading statements in connection with entry into Australia – unlawful stay in Australia – disregard for Australian migration laws – deterrence – genuine marriage to Australian citizen – compassionate grounds

Migration Act 1958  ss 499, 501

Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005)

141 FCR 552

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

Re Chau and Minister for Immigration and Multicultural and Indigenous Affairs [2001]

AATA 485

Re Chim and Minister for Immigration and Multicultural and Indigenous Affairs [2002]

AATA 1340

REASONS FOR DECISION

25 May 2007 Mr Egon Fice, Member       

1.      In May 2005, Mr Jian Ming Yan lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then) (the Department) to sponsor the migration of his wife, Ms Jing Zhao, to Australia.  Ms Zhao also lodged an application for migration to Australia seeking a combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) Visa.  Mr Yan is an Australian citizen, having been granted citizenship in March 1997.  He went to China in March 2005 where he married Ms Zhao.

2. On 19 October 2006 a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) decided, pursuant to s 501(1) of the Migration Act 1958 (the Act), to refuse to grant Ms Zhao a visa.  The reason for refusal was that the Minister was not satisfied that Ms Zhao passed the character test due to her past and present general conduct. 

3.      The issues before me are:

(a)whether Ms Zhao passes the character test as defined in s 501(6) of the Act; and

(b)whether, having regard to the directions made by the Minister under s 499 of the Act, the preferable decision was to refuse to grant Ms Zhao a visa.

RELEVANT FACTS

4.      In 1997 Ms Zhao applied for a short stay Business Visa (subclass 456).  This visa was granted and Ms Zhao arrived in Australia on 17 January 1998. 

5.      On 12 February 1998 Ms Zhao lodged an application for a Protection Visa (866).  She claimed that she assisted in organising a body known as the Freedom Union in China.  She claimed that if she was forced to return to China, she would suffer persecution and imprisonment due to her participation in pro‑democracy activities associated with the Freedom Union.

6.      After investigating Ms Zhao’s claim, the Department informed Ms Zhao on 28 February 1998 that her application for the grant of a protection visa was refused.  Ms Zhao had been granted a Bridging Visa A, which allowed her to remain in Australia lawfully while her application for refugee protection was assessed.  The Department also informed Ms Zhao on 28 February 1998 that her bridging visa would only permit her to remain lawfully in Australia for a further period of 28 days from the receipt of the letter, unless she applied for a review within that 28‑day period.  If she did apply for a review, her bridging visa would cease 28 days after a final decision had been made on her application.  Ms Zhao lodged an application with the Refugee Review Tribunal (RRT) on 23 March 1998 seeking a review of that decision.  

7.      Ms Zhao attended the RRT hearing, which was conducted by video, on 11 May 1999.  She was assisted by a registered migration agent.  The RRT affirmed the decision not to grant Ms Zhao a protection visa.  On 1 July 1999 Ms Zhao requested that the Minister consider exercising his discretion under s 417 of the Act.  The Minister declined to do so. 

8.      Ms Zhao’s Bridging Visa A expired on 16 June 1999.  Despite that, Ms Zhao remained in Australia until she was arrested on 5 December 2004.  She was detained at the Maribyrnong Immigration Detention Centre.  Ms Zhao was subsequently deported after having spent approximately five years and five months as an unlawful non-citizen in Australia.

9.      According to Mr Yan’s sponsorship application, he met Ms Zhao on 25 July 2002 at the Crown Casino in Melbourne.  After Ms Zhao was deported in December 2004, Mr Yan went to China where he married Ms Zhao on 28 March 2005.  Ms Zhao has a daughter from a previous marriage, which she said ended in divorce on 24 May 2002.  Her application for migration to Australia does not include her daughter.

10.     On 11 January 2006 the Department wrote to Ms Zhao regarding her migration application.  The Department noted that Ms Zhao may be subject to refusal under s 501(6)(c)(ii) of the Act.  That letter provided Ms Zhao with the opportunity to comment on the matters stated to be relevant to the Minister’s exercise of his discretion under the Act.  Ms Zhao lodged a response dated 27 January 2006.

11.     By letter dated 19 October 2006, a delegate of the Minister wrote to Ms Zhao informing her of his decision to refuse to grant a visa to Ms Zhao.

LEGISLATIVE SCHEME

12.     Section 501 of the Act 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.

Note:   Character test is defined by subsection (6).

…

(6)       For the purposes of this section, a person does not pass the character test if:

…

(c)       having regard to either or both of the following:

(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

…

Otherwise, the person passes the character test.

13.     It is the Ministers contention that, due to Ms Zhoa’s past and present general conduct, she is not a person of good character and therefore does not pass the character test.

14.     Pursuant to s 499 of the Act, the Minister may give written directions to a person or body having functions or powers under the Act, which are about the performance of those functions or the exercise of those powers.  The Minister has made such directions, the current direction being Ministerial Direction Nº 21 dated 23 August 2001 (the Ministerial Direction).  The preamble to the Ministerial Direction states that it provides a guide to decision makers when making decisions to refuse or cancel a visa under s 501 of the Act.  The Ministerial Direction also states that the directions are binding on all decision-makers, including Merits Review Tribunals, to ensure a consistent approach.  For the purposes of the Ministerial Direction, the term decision-maker includes both the Minister’s delegates for the purposes of s 501 of the Act and Members of the Administrative Appeals Tribunal, when conducting a review of the decision made under s 501 of the Act. 

15.     The Ministerial Direction consists of two parts.  Part 1 provides directions for the application of the character test.  Part 2 provides directions on the considerations, and the weight to be given to those considerations, if a non-citizen does not pass the character test and a decision‑maker then exercises the discretion to consider whether to refuse or cancel a visa. 

16.     In this case, the Minister relies on s 501(6)(c)(ii) to establish that Ms Zhao is not of good character.  The Ministerial Direction provides that in reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.  More specifically, when considering a non‑citizen’s past and present general conduct, I am required to consider the following relevant matters which 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… [including] breaches of immigration law;

(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;

(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country…

I am also required to take into account recent good conduct, particularly good acts performed by the non-citizen after reprehensible conduct. 

DOES MS ZHAO PASS THE CHARACTER TEST

17.     Ms Zhao will not pass the character test if, having regard to her past and present general conduct, I find that she is not of good character.  As the Full Court of the Federal Court of Australia said in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 at p560:

…

If the Minister finds that the visa applicant is "not of good character" that person "does not pass the character test" and accordingly does not satisfy the Minister under s 501(1). It is a finding of fact in which the meaning of the words "not of good character" is all important.

The words "of good character" mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).

…The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).

…

Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct…

and at p561:

…

A provision such as 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the Minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the Minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person. (See: Powell v Administrative Appeals Tribunal (1998) 98 FCR 1 per French J at [14]-[15]).

18.     When dealing with the word general the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 said that it did not necessarily mean prevalent or unusual conduct but could include conduct displayed on a few occasions or even once or twice.

19.     Ms Zhao gave evidence by telephone from Shanghai.  She said that when she first arrived in Australia in January 1998, she was aware that she was not permitted to work on her short stay visa.  She was aware that she required a different visa in order to be permitted her to work.  Ms Zhao admitted that, in order to obtain her short stay business visa, she provided false information about her employment.  Ms Zhao also gave evidence of the fact that the agent who assisted her with her short stay business visa told her that her short stay visa could be converted into a working visa after she arrived in Australia. 

20.     Shortly after arrival in Australia in 1998 Ms Zhao lodged an application for a protection visa.  She said that her migration agent in Australia completed the form because her English was not good.  She simply signed the form.  Nevertheless, she understood that it was an application for a protection visa.  Although Ms Zhao claimed that the application for a protection visa was completed by her migration agent, it is apparent from the handwriting on that document that at least two persons have provided answers to the questions therein.  Ms Zhao signed the application after making a declaration that the information contained in the form was complete, correct and up-to-date in every detail.  The form had an accompanying letter explaining that she was a member of and assisted in organising a group known as the Freedom Union.  According to the letter, the Freedom Union members organised a number of demonstrations which incurred the wrath of Public Security Bureau and the Police Force.  The letter indicated that pro-democracy activists in China were subjected to persecution and imprisonment.  However, at the hearing of this matter, Ms Zhao admitted all of those claims were false.  She agreed she wanted to come to Australia in order to work here and it was not out of fear of persecution or imprisonment in China. 

21.     Ms Zhao’s application for a protection visa was denied.  She then applied for a review of that decision by the RRT.  In support of her application to the RRT, her agent provided a letter setting out submissions and the application was accompanied by a further letter signed by Ms Zhao, regarding her involvement in the Freedom Union.  In that letter she said that she played a leadership role in the Freedom Union.  She admitted that those statements were false.  Furthermore, a number of other documents were provided to the RRT regarding Ms Zhao’s involvement in the Freedom Union.  Some of those documents were in the Chinese language but had been interpreted by Ms Zhao’s migration agent.  Ms Zhao admitted that all of those documents were false.  Ms Zhao claims that she simply did what she was asked to by her migration agent.  Ms Zhao also gave evidence at the RRT hearing and she agreed before me that her evidence was made on Oath or Affirmation.  She admitted that despite the fact that she promised to tell the truth, she did not do so.  She claimed that she did not know what else to do as she wanted to remain in Australia.  She said she simply did what she was asked to do by the migration agent and also that many Chinese immigrants had made similar statements simply to get what they wanted.  She also suggested that her case was not unique as many others were doing similar things.

22.     The RRT affirmed the decision not to grant Ms Zhao a protection visa.  Nevertheless, Ms Zhao did not then leave Australia.  In fact, she took steps to avoid detection as an illegal immigrant.  She fraudulently obtained a driving licence, which was in the name of her sister but which bore her own photograph.  Her sister was living in Australia and had been granted Australian citizenship.  She said that she had stolen her sister’s passport in order to obtain the false driving licence.  When finally arrested in December 2004, she also had in her possession a Medicare card, a Bankcard and a Fly Buys card in the name of her sister.  Ms Zhao said in evidence that she had not obtained any Government benefits by using the Medicare card.  Ms Zhao admitted that during the five and a half years that she was illegally in Australia she had a number of jobs.

23.     In my view, the conduct outlined above clearly establishes that Ms Zhao is not a person of good character.  Her conduct between 1997, when she first applied for a short stay visa, and December 2004 when she was arrested, indicates that she embarked upon a deliberate strategy to mislead immigration officers into granting her a permanent visa in Australia.  She was at all times fully aware that the claims she was making regarding her applications were false and misleading.  Her conduct clearly shows contempt and disregard for the laws of this country.  When her protection visa was refused, she was quite prepared to give evidence at the RRT which she knew was false.  This was in spite of having either Affirmed or taken an Oath to tell the truth.  She also did not hesitate to make false declarations on documents which she had filed in support of her applications.  Although she claimed that she was only acting on the instructions of her migration agent, I have no doubt that Ms Zhao was at all times aware that what she was doing was fraudulent.  She attempted to justify that conduct by stating that many Chinese immigrants have done precisely what she did.  That of course does not in any way excuse her conduct.  Furthermore, Ms Zhao, after being rejected by the RRT, set about to deliberately avoid detection and apprehension by obtaining forged documents in order to support her identity and to mislead immigration officials should they query her status.  In my view, her entire pattern of conduct strongly points to the absence of the moral qualities which are to be found in a person of good character. 

24.     There was no evidence before me that Ms Zhao’s conduct after being removed from Australia in December 2004 was different to her past conduct.  Although Ms Zhao made admissions about her visa applications after she was detained, she only did so when she was in immigration detention.  She again made admissions when she was interviewed in Shanghai in June 2005 following her application for a spouse visa.  At question six of that application, Ms Zhao was asked if she had ever been refused an entry permit or visa to Australia.  Although she answered that she had, she only mentioned the fact that in October 1997 she had applied for a temporary visitor visa which was refused due to insufficient documentation.  She made no mention at all of having been refused an application for a protection visa.  In her interview on 10 June 2005, Ms Zhao was asked if she knew what the Freedom Union was and she answered I don’t know.  In my view, Ms Zhao’s continuing conduct demonstrates that she shows a lack of enduring moral quality.  I am therefore satisfied that Ms Zhao is not a person of good character and that she fails to pass the character test as that is defined in s 501(6) of the Act.

25. Because Ms Zhao does not pass the character test, the Minister’s discretion to refuse to grant her a spouse visa is enlivened by reason of s 501(1) of the Act. As is explained in Part 2 of the Ministerial Direction, where a non-citizen does not pass the character test, decision-makers must have regard to the considerations set out in Part 2 when exercising discretion regarding whether a non-citizen should be permitted to enter into Australia (paragraph 2.1). There are three primary considerations and a number of other considerations which must be taken into account. The primary considerations will of course carry more weight than the other considerations and I am required to adopt a balancing process taking into account all relevant considerations. The primary considerations set out in paragraph 2.3 of the Ministerial Direction are:

(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

26.     Paragraph 2.4 of the Ministerial Direction states that:

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…

The factors which are relevant to assessing the 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).

Seriousness and Nature of the Conduct

27.     Paragraph 2.6 of the Ministerial Direction sets out examples of offences which are considered by the Government to be very serious.  Among those examples are serious crimes against the Act, including but not limited to, presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia. 

28.     The evidence clearly discloses that Ms Zhao deliberately made a number of false and misleading statements in connection with entry or stay in Australia.  In particular, she:

(a)made false statements when applying for her short stay business visa in 1997;

(b)made false statements and claims when applying for the protection visa including the giving of false evidence to the RRT;

(c)made false and misleading statements in support of a request to the Minister under s 417 of the Act; and

(c)fraudulently acquired a driving licence, Medicare card and Bankcard, using her sister’s identification documents; and attempted to pass herself off as her sister in an attempt to avoid detention.

29.     Section 234 of the Act makes it an offence for a non-citizen to knowingly make false or misleading statements regarding material particulars to an officer or person exercising powers or performing functions under the Act in connection with an application for a visa or a further visa permitting the non-citizen to remain in Australia.  The maximum penalty for an offence under s 234 is imprisonment for 10 years or 1000 penalty units or both.  I am of course conscious of the fact that Ms Zhao was never charged with that offence under s 234 of the Act, let alone convicted.  I am mindful of the Full Court’s statement in Baker where it said, at p194:

…Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B Robertson, "Criminal Allegations in Civil Cases" (1991) 107 LQR 194…

Also, in support of that proposition, the Full Court in Godley said that …in the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available.

However, in this case Ms Zhao has admitted to knowingly making false and misleading statements in respect of her protection visa application and at the subsequent RRT hearing.  Ms Zhao repeated that admission in her evidence before me; but sought to justify her actions by stating that she did so because she wanted the visa and that others did similar things.  In these circumstances, it would appear that Ms Zhao has committed the offence described in s 234 of the Act. 

30.     Ms Zhao also admitted that she performed work in Australia at the time when she was an unlawful non-citizen.  That appears to be an offence against s 235 of the Act which attracts a penalty being a fine not exceeding $10,000. 

31.     I accept the submission of the Minister that the Australian government relies on the integrity of non-citizens to provide personal information that may not be readily subject to independent verification and to obey Australian laws during their period of stay in the country.  The perception that Australia’s migration program is even-handed is severely undermined when people are successful in obtaining visas or other ancillary benefits by deceiving Department officers and breaching Australian laws.  I also agree with the Minister’s submission that Ms Zhao’s conduct in this regard was serious and that it demonstrated a disregard for Australian immigration laws.

Likelihood that the Conduct may be Repeated

32.     The Minister submitted that Ms Zhao has demonstrated a high propensity to disregard Australian immigration laws, whenever it has been in her interest to do so. According to the Minister, the Tribunal cannot therefore be satisfied that she would not continue to disregard the law in the future.  The Minister also submitted that given Ms Zhao’s conduct regarding the fraudulent obtaining of a visa, her subsequent misrepresentations regarding her identity to obtain a driving licence, Medicare card and Bankcard, her overstaying her visa and working without a permit and the attempted evasion of the enforcement authorities would indicate that there was a serious risk of recidivism. 

33.     However, it is clear that the offences committed by Ms Zhao in relation to her stay in Australia, which were admitted, relate solely to her application for a visa and the opportunity to remain in Australia on a permanent basis.  If the Tribunal were to find in her favour on this application, it would result in Ms Zhao lawfully obtaining a permit to remain permanently in Australia.  Other than offences which Ms Zhao has admitted to committing under the Act, there is no evidence that Ms Zhao has been involved in any criminal conduct.  In my view, it is therefore unlikely that there will be any risk of recidivism. 

General Deterrence

34.     The Minister submitted that refusing Ms Zhao’s application to migrate to Australia as a partner of an Australian citizen would act as an effective general deterrent to non-citizens who may, in the future, be tempted to provide false and misleading information in order to gain the benefit of a visa or to gain permission to work in Australia. 

35.     The Minister directed my attention to two Tribunal decisions; Re Chim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1340 and Re Chau and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 485. The Tribunal in Re Chim followed the decision of Deputy President Wright in Re Chau in stating that, where a visa applicant is refused entry because of a breach of Australia’s migration laws, other persons who are similarly minded might be deterred from following suit.  In my respectful opinion, that is correct.  I also agree with the submission of the Minister that there is a communication network which operates in migration matters; and that the refusal of visas, where earlier visas have been obtained by unlawful conduct, would act as a deterrent to others seeking to take the same path to permanent residence in Australia. 

EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

36.     Paragraph 2.12 of the Ministerial Direction states that The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached the trust placed in them it may be appropriate to refuse the application.  Visa refusal may be appropriate simply because of the nature of the character concerned or the offences are such that the Australian community would expect that person would not be granted a visa.

37.     The Minister submitted that the Australian community would expect that only those persons who abided by Australia’s immigration laws when applying for visas would be granted entry into Australia; and that persons who attempted to circumvent such laws would, once detected, not be permitted to benefit from the attempt.  The Minister also submitted that community expectations were that there should be no reward for providing false and misleading information, overstaying visas and working illegally, and obtaining documents through identity fraud.  I accept those submissions and believe that the expectations of the Australian community, in circumstances such as that of Ms Zhao, are that her application for migration to Australia on the grounds that she is now married to an Australian Citizen should be refused.

THE BEST INTERESTS OF THE CHILD

38.     The Ministerial Direction requires me to take into account the interests of any child less than 18 years of age when the decision is intended to come into effect.  Ms Zhao has a 14 year old daughter who lives in China.  Ms Zhao’s daughter did not accompany her to Australia in 1998.  Ms Zhao indicated that her daughter was from her first marriage and that she was in the custody of her first husband, but mainly spent time with Ms Zhao’s parents.  Ms Zhao’s daughter is expressly excluded from her application for migration to Australia.  I therefore accept the Minister’s submission that it is reasonable to assume that Ms Zhao’s daughter is settled in China and that if I were to refuse Ms Zhao’s application, it would have little effect on her daughter. 

OTHER CONSIDERATIONS

39.     The Ministerial Direction provides that other matters, although not primary considerations may be relevant when considering the refusal of a visa.  These matters are to be given less individual weight than that given to the primary considerations.

40.     One of the matters I am required to examine is whether there is a genuine marriage to an Australian Citizen.  In assessing the compassionate claims of the Australian partner, I am required to consider the circumstances under which the relationship was established and whether the Australian partner knew that the non‑citizen was of character concern at the time of entering into or establishing the relationship.  Mr Yan said in evidence that he was not aware that Ms Zhao was in Australia unlawfully until she was detained by officers of the Department.  He was with her at the time she was detained.  He was aware that she was removed from Australia because she did not have a valid visa.  Mr Yan also said that he was unaware that Ms Zhao had made a false application for a protection visa until he went back to China to be with her.  However, what is clear is that when Mr Yan went to China in March 2005 in order to marry Ms Zhao, he was aware that Ms Zhao had lived in Australia for some five and a half years as an illegal non‑citizen.  In my opinion, Mr Yan would have been or ought to have been aware at the time that he went back to China to marry Ms Zhao that she would have considerable difficulty in lawfully obtaining a visa to re-enter Australia. 

41.     On the other hand, although Mr Yan was born in Shanghai and is fluent in the Chinese language, he claims to no longer have a network of contacts in China and believes he would have difficulty in obtaining employment if he should move to China to live with his spouse.  He also indicated that Ms Zhao does not have a job at present.  Mr Yan does not have a source of income in Australia and he qualifies for social security payments.  He said that he was concerned that he would not be able to survive if he went to China. 

42.     Mr Yan asked me to consider a medical report from Dr Christopher Mulroney dated 11 April 2007.  That report indicates that Mr Yan is suffering from major depression related to his inability to be with his wife.  Dr Mulroney said that although Mr Yan was employed as a useful member of this community, due to the situation with his wife he has become increasingly depressed, unable to work and is now on sickness benefits.  He noted that Mr Yan requires medication to control his depression and to assist with sleep.  Mr Yan was also seen by Dr R.W. Farnbach, a consultant psychiatrist, on 20 December 2006.  Dr Farnbach confirmed that Mr Yan was suffering from severe depression and, although he was being treated with anti‑depressant medication, his depression has only improved very slightly.  Dr Farnbach indicated that Mr Yan had not previously suffered from any psychiatric illness or symptoms and concluded that it was reasonable to say that his very severe depression was life-threatening.  Although the Minister submitted that Mr Yan could move to China to be with Ms Zhao if he so wished, Mr Yan said in evidence that without financial support, he could not do that.  If he could get to China, Mr Yan indicated that he thought his condition would improve a lot.

CONCLUSION

43.     The evidence makes it clear that Ms Zhao does not pass the character test because, having regard to her past and present general conduct, she is not a person of good character.  That being the case, the Minister’s discretion to refuse to grant Ms Zhao a visa is enlivened.

44.     In considering whether the decision of the Minister to exercise her discretion to refuse to grant a visa is the preferable decision, I am required to take into account the directions as set out in Part 2 of the Ministerial Direction.  As far as the primary considerations are concerned, and these are considerations which carry greater weight, they strongly favour the decision made by the Minister to refuse to grant a visa.  Ms Zhao’s conduct in providing false and misleading information to officers of the Department constituted a very serious disregard of Australia’s migration laws.  Her request for a protection visa was entirely fabricated and was made without any regard to the cost to the Australian community of such an application.  After the failed attempt to secure a protection visa, Ms Zhao, actively engaged in fraudulent conduct to obtain a driver’s licence, Medicare card and Bankcard in an attempt to avoid detection as an illegal non-citizen.  There was no evidence before me to show that Ms Zhao has, since being deported in 2004, altered her behaviour.  I am not confident that, were she allowed to migrate to Australia, she would obey Australian laws at all times if it did not suit her to do so.  I am also of the view that to refuse Ms Zhao’s current application would act as a general deterrence to others seeking to embark upon a similar course of action with the assistance of unscrupulous migration agents.  If Ms Zhao were permitted to migrate to Australia despite her fraudulent past applications and conduct, that would clearly send the wrong message to others seeking residence in Australia. 

45.     I have no doubt that the expectations of the Australian community are that persons should not be rewarded for providing false and misleading information when applying for a visa, overstaying their visas and working illegally and obtaining illegal identity documents. 

46.     Ms Zhao’s migration application does not include her daughter, who it would appear, will remain in China irrespective of the outcome of Ms Zhao’s application.  The fact that Ms Zhao left her daughter in China in 1998, when her daughter was six years of age, and remained in Australia until 2004 without visiting China, in my opinion indicates that she has little or no concern at all for her daughter’s welfare.  It seems to me that there is no ongoing contact between mother and daughter and therefore the interests of the child would seem to favour her remaining in China.

47.     Although Mr Yan and Ms Zhao gave evidence that they were genuinely married, and Mr Yan indicated that his severe depression was caused by his separation from Ms Zhao, in assessing this compassionate claim I am required to consider the circumstances under which the relationship was established.  Before Mr Yan went to China in March 2005 and married Ms Zhao, he was aware that she had been an illegal non-citizen in Australia and that she had been deported to China after evading immigration officers for some five and a half years.  Therefore, Mr Yan must have been aware that Ms Zhao would, at the very least, encounter considerable difficulty if she again applied to migrate to Australia.  I have no doubt that this was the risk he took when he agreed to marry her and then returned to Australia after lodging a sponsorship application in Shanghai. 

48.     Although Ms Zhao has a sister who is an Australian citizen, there was no evidence before me about their relationship.  Ms Zhao also has family in China and she presently resides with her mother.  I do not consider the fact that her sister is an Australian citizen lends much weight to Ms Zhao’s application. 

49.     Therefore, it is my opinion that the decision made by the Minister pursuant to s 501 of the Act to refuse Ms Zhao a visa was the preferable decision and should be affirmed. 

I certify that the forty‑nine [49] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Olympia Sarrinikolaou

Clerk       

Date of Hearing:  13 April 2007

Date of Decision:  25 May 2007

Solicitor for the applicant:            Self‑represented

Solicitor for the respondent:         Ms K. Miller, Australian Government Solicitor