Yan and Minister for Immigration and Multicultural Affairs
[2006] AATA 1505
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1505
| ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATION DIVISION | ) No N2006/203 | ||
| Re: | RONG YAN | ||
| Applicant | |||
| And: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS | ||
| Respondent | |||
| DECISION | |||
| Tribunal | The Hon R N J Purvis AM QC, Deputy President | ||
| Date | 20 December 2006 | ||
| Place | Sydney | ||
DecisionThe decision under review is set aside. The application is referred back to the Respondent for further consideration.
[sgd]_____________
The Hon R N J Purvis AM QC
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa - serious misconduct - fraudulent documents and fraudulent visa application – character test - best interests of children - low likelihood of recidivism - absence of deterrent effect – community expectations – real and long lasting hardship to spouse – decision under review set aside
LEGISLATION
Migration Act 1958 – sections 234, 499(1)(a), 501
Ministerial Direction 21
CASE LAW
Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Tremlett and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Issa v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 421
Grech v Minister for Immigration and Multicultural and Indigenous Affairs (2001) AATA 22
REASONS FOR DECISION
| 20 December 2006 | The Hon R N J Purvis AM QC, Deputy President |
| the application |
Mr Xian Guo Chen (the Visa Applicant) is the husband of Ms Rong Yan (the Review Applicant). On 8 February 2005 Mr Chen applied in Shanghai, China, for a Spouse (Provisional) (Subclass 309) visa on the basis of his marriage to Ms Yan. A delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) on 29 November 2005 refused to grant the visa maintaining that, within the meaning of section 501 of the Migration Act 1958 (‘the Act’) Mr Chen was not of good character. The discretion available to the Respondent was not exercised in Mr Chen’s favour.
Mr Yan has appealed to the Tribunal seeking a review of the Respondent’s decision.
The decision of the Respondent was supported by the reasons upon which it was made. As they tend to identify the issues that were and are of concern in this application it is to be noted that they included the following:
…
Seriousness and nature of conduct
(45)I am satisfied that Mr Chen has engaged in activities that are considered by the Australian Government to be very serious.
…
(46)I considered that Mr Chen’s conduct has shown a continual and blatant disregard for Australia’s immigration laws and has the ability to undermine Australia’s migration program. I consider this conduct to be very serious. I also noted that Mr Chen has admitted to knowingly entering Australia on a photo-substituted passport. I further noted that Mr Chen has also admitted to giving false and misleading information to the department and to remaining and working in Australia without permission.
(47)I considered Mr Chen’s explanation of his conduct, however the nature of Mr Chen’s conduct is such that I gave this consideration great weight, having taken the view that such activity has the ability to undermine Australia’s migration program.
The likelihood that the conduct may be repeated
(48)I considered that Mr Chen has repeatedly shown a blatant disregard for Australia’s immigration laws. I also considered that Mr Chen has sought to circumvent the visa process by providing false and misleading information and documents to enter and remain in Australia.
(49)Based on the above information, I am of the view that there is a significant chance that Mr Chen will engage in similar conduct, either in relation to his dealings with the Department or with other Government agencies should his visa be granted. I placed substantial weight on the likelihood that Mr Chen will engage in future conduct bringing him within the scope of section 501.
…
Expectations of Australian Community
(51)I also gave primary consideration to the expectations of the Australian community. In accordance with the Government’s view that is expressed in the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia. I considered the comments put forward by Mr Chen.
(52)I gave consideration weight to the very serious nature of Mr Chen’s conduct in relation to his continual and blatant disregard for Australia’s immigration laws. I believe that the Australian community would expect Mr Chen’s visa application to be refused. I gave considerable weight to this consideration.
Best interests of the children
(53)…. I also gave primary consideration to the best interests of the children. Mr Chen has a son Jian Chen, who is under the age of 18 years. Mr Chen is included in his father’s application to migrate to Australia.
(54)On balance, I accept that the education and health facilities are of a higher standard in Australian than in China. I found that Mr Chen’s son may benefit from the grant of Mr Chen’s visa. I gave this consideration substantial weight.
Other considerations
(55)In reaching my decision I also took into account other considerations and in particular the effect of a refusal decision on Mr Chen, his wife Ms Rong Yan and members of Mr Chen’s family.
(56)I noted Mr Chen’s wife, Ms Yan, is an Australian citizen and that they have been married since 15 December 2004. The relationship between Mr Chen and Ms Yan has been assessed as genuine and continuing. I accept Mr Chen and Ms Yan would suffer emotional, physical and financial hardship should Mr Chen’s visa application be refused. I gave this matter substantial weight.
…
the issues for consideration
The issues for determination in these proceedings are:
(1)Does Mr Chen pass the character test under section 501(1) of the Act. That is, is he by reason of his past and present criminal and or general conduct a person who is not of good character?
(2) If Mr Chen does not pass the character test:
(a) Should the decision of the Minister’s delegate be affirmed by an exercise of the residual discretion under section 501(1) of the Act against him?
or
(b) Should the decision of the Minister’s delegate be set aside by the exercise of a residual discretion in favour of the Visa Applicant?
(3)Is there a requirement to consider the best interests of the children pursuant to paragraph 2.3(c) of the Ministerial Direction 21 in light of the nature of the relationship between Mr Chen and Ms Yan’s children?
hearing
At the Hearing of this application before the Tribunal Ms Yan was represented by Mrs Grace Chen, Migration Agent. The Respondent was represented by Ms Zoe McDonald, Solicitor of Phillips Fox Lawyers.
The documentary material required to be lodged with the Tribunal by the Respondent and served on the Review Applicant, Ms Yan, was tendered and marked T1 to T57. Further documents tended on behalf of Ms Yan were admitted into evidence and marked Exhibit A to Exhibit O.
Ms Yan, Mr Chen, Mr Xian Qin Chen, Mr He Chan Zhu, Mr Zun Yong Lin and Ms Ying Ni gave evidence with the assistance of an interpreter upon which they were each cross-examined.
relevant statutory provisions and ministerial direction
Section 234(1) of the Act provides:
234 False Papers etc.
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.
By section 501(1) of the Act the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.
501 Refusal or cancellation of visa on character grounds
…
(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
…
The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324 it was said:
The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard 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.
As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications, see Tremlett and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Issa v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 421.
A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction 21 issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.
Direction 21 as here relevant provides:
1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. 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.
…
Subparagraph 501 (6)(c)(ii) - past and present general conduct
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:
·Whether the non-citizen has been involved in activities indicating contempt or disregard for the law or for human rights.
·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 and misleading statement;
·Whether the non-citizen has ever made a false and misleading declaration on a form as defined in Subsection 5(1) of the Act about the non-citizens character and conduct or both;
·Whether the non-citizen has been removed/deported from Australia or removed/deported from another country
PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, 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.
(a) Relevant considerations
(b) Primary considerations
2.3 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.
Protection of the Australian Community
….
2.5 The 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
2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
…
c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... 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. …
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view 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 may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …
· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must 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;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"
factual situation and findings of fact
Mr Chen was born in the People’s Republic of China on 20 June 1964. Ms Yan was also born in China and on 6 April 1974.
Mr Chen arrived in Australia on 29 April 1997 as the holder of a Visitor Visa. The visa was obtained by him in China in another person’s name and by the payment of money. As above noted and discussed in more detail below he overstayed the visa and remained as an unlawful non-citizen for approximately four years and four months. He departed Australia on 6 June 2002. During that period he lodged a false Protection Visa Application, applied to the Refugee Review Tribunal for review and to the Minister for the exercise of the Minister’s discretion. Further, during the period of his unlawful stay in Australia he worked without permission and in March 2002 gave false and misleading information to Migration officials including a false identification.
Mr Chen says that he applied for a Chinese passport in China in his own name but he was refused because of his past political activities. He wanted to leave China. He paid money and in due course was presented with a passport with his photo but in a different name. An Australian visa was obtained in the false name. He entered Australia on these documents. Shortly after his arrival he made enquiries about “applying for refugee status” (Exhibit A). He authorised and paid a Migration Agent in Sydney. He signed a blank application form. Details, Mr Chen said, were inserted on the form by the Agent. They were false and fictitious. He did not at this time enquire as to the basis upon which his Protection Visa Application was being made. The application was based upon a false contention that Mr Chen was a homosexual and hence persecuted in China.
Mr Chen says that he “had to work” to support himself, his son and his parents in China. The fact is that he had no right to be in Australia. The visa had expired. He had not sought or obtained permission to work. He was detected working by officers of the Department of Immigration and Multicultural Affairs and warned. He continued working and when detected on a second occasion he presented documents not belonging to himself. Whether this was to deceive the officers, or just because the documents happened to be on his person, they belonging to another with whom he had been living, it is not possible on the evidence to determine.
Mr Chen and Mrs Yan married in China on 15 December 2004. There is not any issue in this matter as to the marriage being other than genuine. Mr Chen had been previously married on 17 July 1986 and divorced on 1 December 2003. There was a son born of this relationship on 11 January 1988. The son is living with Mr Chen in China and is included in his Visa Application.
Ms Yan had also been previously married on 6 March 1996 and divorced on 27 April 2000. She had formed another relationship from which there are two children, the son living with his father in Sydney, the daughter with Ms Yan in Melbourne. This relationship ceased some time ago and prior to her meeting Mr Chen.
Mr Chen and Ms Yan first met at a party in China on an occasion when Ms Yan was visiting that country. They found solace in each other. He told her generally, with little detail, about his illegal immigrant status in Australia. She says she was aware of the difficulties she and her husband would face with the Respondent but she says she was “prepared to give this relationship a chance and a future” (Exhibit G). Having lived through two unsuccessful relationships Ms Yan believed, and does believe, that Mr Chen is committed to her.
Mr Chen says he has been punished not being able to live with his wife since their marriage. He has he says learned his lesson. He says he will never repeat conduct the like of his lies and deceptions of the past.
Ms Yan has responsibility for her daughter and on an occasional basis the son of the abovementioned relationship. She also has the care of her father, a disabled pensioner, and her mother who is not literate in English. She has a younger brother who assists her from time to time. The son lives in China with his grandparents for periods when not in Australia. The daughter lives in Melbourne with Ms Yan. There is a bonding between the daughter and Mr Chen, the daughter’s natural father having left the household when the girl was less than three years old. The daughter maintains telephone contact on a frequent basis with Mr Chen.
Ms Yan has spent time with her husband in China. Indeed she has travelled to China on four occasions of recent date, twice in 2004, in 2005 and more recently a period of three months in 2006. She says that when in Australia she is missing her husband. When in China she is thinking of her daughter and parents in Australia. She has no intention of divorcing Mr Chen. The alternative is for her to live “in two different countries” (Exhibit B). As she says:
I will not get divorced from my husband. I am no longer very young. I cannot afford losing my husband and my husband’s love. It is not easy to find somebody whom I love and who loves me. As for living my entire life away from my husband in two countries, it is indeed to (sic) cruel a punishment. My children need a complete family with Daddy and Mummy around them in the same household.
If Mr Chen is allowed to enter Australia it is his intent with Ms Yan to establish their own furniture making business. Mr Chen is a skilled tradesman in future manufacture.
character
Mr Chen cannot been seen within the meaning of the Act as other than a person who is not of good character. He knowingly entered Australia on a false passport. Even if he was not aware of the details set forth in his Protection Visa Application he was a party to applying for such a visa knowing that he did not have good grounds for doing so. He was aware of the visa being refused but gave instructions for a Review Application to be made to the Refugee Review Tribunal where he confirmed the false allegations. He gave instructions to apply to the Minister.
Mr Chen may not have been aware of the need to obtain permission to work. However he was aware of the duration of the Entry Visitor Visa and was working at a time when he was knowingly an unlawful non-citizen. The explanation given by him as to the provision of misleading information and assumption of a false identity is possibly correct. I make no finding in this regard.
Evidence as to Mr Chen’s good character whilst he has been living in China was before the Tribunal. However there is also evidence of Mr Chen providing false information to the Department of Immigration and Multicultural Affairs at the time of his making the application for the subject Spouse Visa. He gave negative answers to questions that clearly should have been answered in the affirmative. This may well have been an innocent mistake on his part but it nevertheless occurred.
In my opinion the favourable character evidence is not such as to enable me to find other than that his conduct referable to his entry and his stay in Australia was in breach of the provisions of the Act. It was very serious misconduct and reflects adversely upon his character. His more recent provision of incorrect information is likewise adverse to any favourable character finding.
I can only reiterate what I said in Issa. As I have already stated Mr Chen was aware of the falsity of the documents presented by him to the Migration authorities in support of his visa application. He may not have been aware of the details of the forgery but he was aware of the fact that the documents themselves were not genuine and correct. I am also satisfied that Mr Chen knew or should have known of the falsity of the statements contained in his Protection Visa Application. He provided the person preparing his application with information as to his position in China. The matters contained in and set forth in his application are such as to mislead and were intended to mislead the Respondent. Mr Chen is not relieved of his primary responsibilities by contending that it was his agent who made the allegations and not he himself (see Grech v Minister for Immigration and Multicultural and Indigenous Affairs (2001) AATA 22 at paragraph 52). If Mr Chen did not sign the application form prior to the information being set forth in it, which he says he did, he should have ensured that the material was made available to him before it was presented to the Department. Mr Chen displayed an attitude of not accepting responsibility for the information that was presented to the authorities in support of his application for a visa. He cannot disclaim his primary responsibility. Mr Chen was a party to the provision of false information to the Respondent in support of his Protection Visa Application, information he knew to be false or should have known was false.
Within the meaning of the Act Mr Chen is a person not of good character.
discretionary considerations
When asked to exercise the discretion granted to the decision maker, where a finding ‘not of good character’ is made, the considerations stipulated in Ministerial Direction 21 are to be discussed having in mind the particular circumstances of the application.
This latter mentioned aspect does not in any way tend to minimise the seriousness of the conduct that led to the character finding. The direction provides that the seriousness of the conduct leading to the character finding is to be weighted against other considerations including the protection of the Australian community and its members – seriousness of the conduct, recidivism and deterrence – the expectations of that community and the best interests of any relevant children. There are other considerations to be given a lesser weight including the harm and hardship that might be experienced by Mr Chen and Mrs Yan and others.
Again I can only repeat what I said in Issa namely that conduct relating to the presentation of fraudulent documents lodged in support of an application for residence in Australia cannot be viewed other than as being very serious. The Ministerial Direction makes specific reference to the presentation of false or forged documents the same acting so as to frustrate the purpose and object of the Act. The Act itself in section 234 evidences the serious nature of such conduct as seen by the legislature in providing for a maximum penalty of 10 years imprisonment on conviction. It will of course depend upon the extent of the falsity and the extent of other adverse conduct but each is to be regarded, depending upon the relevant facts, as extremely serious. This is particularly so in the context of a Refugee Protection Visa application. The convention and relevant legislation is intended to protect those genuinely in need. The making of false claims and false representations can only lead to delay in a consideration of applications that are with merit thus causing stress to genuine applicants. The use of the migration system to serve unwarranted ends can only be seen as serious conduct deserving of adverse attention. Mr Chen has clearly demonstrated a willingness to make false claims and present fraudulent documents in support of his application to seek entry into Australia. He demonstrated a preparedness to act in breach of the law.
The making of a false representation or representations in a visa application is rarely done without the assistance of others. The refusal of a visa on this account could well discourage such utilisation and cooperation. The obtaining of the forged documentation in support of the initial visa application was carried out with the assistance of others and for a fee. If it is seen that such conduct is a factor which may well lessen the chances, if not preclude an Applicant being granted a visa then this may well deter others who may be minded to assist in the making of false claims or the presentation of fraudulent documentation.
Mr Chen disclaims any likelihood of his again engaging in conduct which is contrary to the law and calculated to mislead or deceive. Ms Yan endorses this resolve and in addition says that she will make sure as best she can that this does not occur.
But more. Mr Chen’s elder brother speaks of Mr Chen being a “very honest and caring person” (Exhibit C). He is aware of the inappropriate conduct of his brother whilst he was in Australia but nevertheless maintains that he is an honest person always prepared to help others. He does not think that his brother will repeat his mistakes of the past in the future. A “working mate” speaks well of Mr Chen as a trusting person “warm hearted to the disable people” (Exhibit D). In his evidence before the Tribunal this witness stated that he was also aware of Mr Chen’s breaches of Migration Law in Australia but maintained that he was nevertheless an honest person who “may make mistakes but can correct them”. The witness said that he “could feel his sorrow”, referring to Mr Chen, and believed that he would not repeat the mistakes in the future. A “friend” says that Mr Chen is caring, that his friends like him and respect him (Exhibit E). In his evidence this witness, an accountant, said that he was aware of Mr Chen breaching Australian Migration Law including the false claim for a Refugee Visa. He had been told of this conduct by Mr Chen. However he maintained that in his opinion Mr Chen would not repeat his past conduct. A cousin of Mr Chen speaks of him as always taking “care of relatives and friends he treated them with respect and fidelity. When he sees people need help he will immediately go up to them and help them”. The cousin also was aware of the conduct of Mr Chen in Australia but maintained that even be it he made mistakes, even Chairman Mao made mistakes such as the “cultural revolution”. The cousin spoke of Mr Chen regretting his past conduct and was of the opinion that he would not repeat his mistakes in the future. The director of Luo Xing Village Women’s Society of Mawei District, Fuzhou City, Fujian Province, China, said that she knows Mr Chen and considers him honest and “very reliable”. She says that Mr Chen is happy to help others, obeys local rules and regulations and actively maintains “social morals”. Although his “wife is living overseas and he has lots of inconvenience in his life he still tries his best to be positive and looks after his parents. He gets along with neighbours and is always more than happy to offer help to anyone. He is a very respectable person.” The Director continues by saying “He [Mr Chen] is very remorseful. He has reformed and is willing to continue being an honest and hardworking person and to continue loving his wife. As the husband and the wife are still living separately we sincerely wish that the Australian Government would forgive him and give him a second chance to go to Australia to be reunited with his wife”. A representative of the Nationals People’s Congress of Mawei District spoke of Mr Chen being honest and reliable and helping friends and neighbours. The representative also said that in 1997 Mr Chen had been suffering from pressure “from his work and life”. The representative was aware of the conduct of Mr Chen but maintained he has a favourable assessment of him. Other persons providing statements to the Tribunal spoke of Mr Chen being an honest and reliable person.
Mr Chen is said (Exhibit N) to be suffering from depression on account of his being separated from his wife. He has according to a doctor in China (Exhibit J) been suffering from insomnia and melancholia for a long time. He is experiencing a psychological illness. The doctor believes “that once Mr Chen is able to go to Australia to be reunited with his wife and child he would get better very soon”.
The doctor further spoke of Mr Chen being “kind, hardworking and loving. A person who has regretted very much for his unlawful stay in Australia”. Further the doctor was of the view that “the family desperately needs reunion. The wife needs her husband’s care, the child needs father’s love and the aged ones need family members’ care”.
Ms Yan recently consulted a psychologist who having obtained a case history from her and discussed her problems and difficulties stated a belief that Ms Yan had “had to cope with a great deal in life” (Exhibit G). She was presently experiencing anxiety at being separated from her husband.
In her application Ms Yan gave as a reason for seeking review of the Respondent’s decision “the interest of our children from both sides was not taken into consideration when the refusal decision was made”.
As mentioned earlier in these reasons the Respondent did acknowledge the children, at least Mr Chen’s son, under the sub-heading “Best Interests of the Children”. However no consideration was given by the Respondent to the best interests of the children of Ms Yan. This aspect is a significant matter for consideration in this application. No mention was thus made by the Respondent of the rapport that has developed between Mr Chen and Mr Yan’s daughter since she was three years of age. She has met him when she travelled to China with her mother, speaks to him when he telephones Ms Yan and when she telephones Mr Chen. The daughter refers to Mr Chen as “Dad” and often asks her mother when he will come to live with them.
Ms Yan’s son, although living with his father in Sydney, also spends time in China with his grandparents and In Australia with Ms Yan. They have frequent telephone contact.
It is clearly in the best interests of the daughter that she have a father figure in her household and this is a role that Mr Chen seeks to play.
There is not any evidence before the Tribunal as to the best interests of Mr Chen’s son who resides in China. He is included in Mr Chen’s application.
discussion and decision
Ms Yan is of the opinion that if her husband is not granted a visa it will mean that they cannot live together and they will each continue to suffer the “cruel situation for them” that they presently experience. She “feels misery”. It is not feasible for her to return permanently to China even though she has visited her husband there on a number of occasions. Her parents are Australian citizens and need her care. Her father uses a mobile chair. He is experiencing mental and psychological problems which are getting worse. He undertakes physical therapy three times a week. Ms Yan’s daughter is an Australian citizen who also needs her care.
Mr Chen regrets his past conduct and asks to be allowed to reunite with his wife and his step-daughter who he looks upon as his daughter. He wishes to establish his own furniture business and “make a contribution to the Australian society”. He promises that his past mistakes will not be repeated. He has a reputation for hard work and helping others and wants to continue in this vain in Australia. Ms Yan says she is experiencing financial hardship and needs her husband to assist her in looking after her dependants. She wants the opportunity to now, after her past experiences, live a happy family life.
Whilst appreciating the seriousness of Mr Chen’s conduct I am satisfied on the basis of the evidence before the Tribunal that there is little likelihood of such conduct being repeated. The circumstances existing at the time of his leaving China and staying in Australia were very different than at the present time and as they will be in the future.
I do not accept, having in mind also the prospective influence of his wife that Mr Chen will do other than comply with Australian law.
Whilst refusal of a visa would, as the Respondent submits, undoubtedly send a message to others that conduct of the type engaged in by Mr Chen will not be rewarded, it should be clear from these reasons that it is not the conduct that is being condoned, it is the other considerations that I am required to have in mind that are persuasive.
The Australian community would expect the Tribunal to have regard to the welfare of Ms Yan’s daughter who is in need of a father. She regards Mr Chen as such. She also needs a secure home and mother. Mr Chen can assist to provide both. The community would also have regard to the hardship Ms Yan would experience if her husband was to remain in China. Mr Chen has known the six year old daughter for three years. They have spent time together in China. They talk to one another frequently. It is not feasible for Ms Yan to take her daughter to live in China on a permanent basis.
The son of Mr Chen included in his application is not likely to be adversely affected either way. He has not visited Australia. His grandparents and siblings all reside in China.
The marriage is genuine. The hardship to Ms Yan of a Visa refusal would be real and long lasting.
There exists in this matter a low likelihood of recidivism. There is an absence of a deterrent effect if a Visa be refused. Community expectations are favourable to Mr Chen. There is an absence of harm to the Community. The best interests of the children of Mrs Yan would be served if a Visa is granted to Mr Chen. The hardship to Mrs Yan in the event of Visa refusal would be considerable. All of these considerations and the findings in relation to them override the seriousness of the misconduct.
Accordingly the decision under review is set aside. The application is referred back to the Respondent for further consideration.
I certify that the 55 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]............................
Associate
Dates of Hearing 28 July 2006, 18 September 2006,
30 November 2006
Date of Decision 20 December 2006
Representative for the Applicant Grace Chen, Migration Agent
Solicitor for the Respondent Zoe McDonald, Phillips Fox, Lawyers
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