Zheng and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1104

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1104

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No N2004/1086

GENERAL ADMINISTRATIVE DIVISION		)
Re		Wen Qing Zheng

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date25 October 2004

PlaceSydney

Decision The decision under review is affirmed.

..…..................................

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visaex – on-shore visa application – cancellation of spouse (provisional) visa – applicant fails the character test on the basis of his past and present general conduct – discretion that the tribunal may exercise where the applicant fails the character test – examination of the applicant’s immigration history including applying for a protection visa using a false name, remaining in Australia unlawfully and working without permission and failing to disclose that he had made a previous visa application which was denied – examination of the applicant’s family situation – found that the applicant fails the character test because of his blatant disregard for Australia’s immigration laws – consideration of the applicant’s spouse’s state of mental health – consideration of the interests of his daughters presently in Australia with the applicant – examination of the evidence that the applicant’s spouse was complicit in the applicant’s plan to obtain a false passport and apply for a spouse visa in a false name – held the protection and expectations of the Australian community outweigh the other considerations – held decision under review affirmed.

Migration Act 1958 ss 499, 501, 501(2), 501(6)(c)(ii)

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

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

Re Fang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1195

Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 826

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

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

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

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

25 October 2004	Professor GD Walker, Deputy President
Summary

1.      The applicant, Wen Qing Zheng, who is aged almost 44 and a citizen of the People’s Republic of China, arrived in Australia on 30 March 2003 on a subclass 309 spouse (provisional) visa.

2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Zheng fails the character test under s 501 of the Migration Act1958 (“the Act”) on the grounds that he previously applied for a protection visa in another name, which was subsequently refused, that he remained in Australia illegally following the refusal of his visa until his removal and that he worked unlawfully during that time, and that he did not declare his previous visa application in his application for a spouse (provisional) visa.  The respondent therefore cancelled Mr Zheng’s spouse (provisional) visa.  This is the decision to be reviewed by the tribunal.

Background

3.      Mr Zheng was born in China on 23 November 1960 and is aged almost 44.  He has four children from a previous marriage.  Two of those children, his daughters Jun Li Zheng, aged 17, and Jun Fang Zheng, aged 16, have been residing in Australia with Mr Zheng since 30 March 2003.

4.      On 5 September 1996, Mr Zheng arrived in Australia on a visitor visa issued in the name of Wen Xiang Zheng (“Xiang Zheng”), which was valid until 5 December 1996 (G p18).  On 6 December 1996, Xiang Zheng became an unlawful non-citizen in Australia.

5.      On 20 July 1998, Mr Zheng, using the false name Xiang Zheng, applied for a protection visa and was given an associated bridging visa C.  His protection visa was refused on 29 September 1998 (G5 p19) and the decision affirmed by the Refugee Review Tribunal (“RRT”) on 31 May 1999.  Mr Zheng, using the name Xiang Zheng, became an unlawful non-citizen in Australia on 5 July 1999 (G6 p22).  On 24 November 1999, Mr Zheng, using the name Xiang Zheng applied for ministerial intervention which was subsequently refused on 2 December 1999 (G5 p19).

6.      On 1 February 2002, Mr Zheng, still using the name of Xiang Zheng, was located by immigration officials whilst working illegally on a construction site in Sydney, New South Wales.  He was subsequently detained in the Villawood Immigration Detention Centre and on 19 March 2002, was removed from Australia (G5 p20).

7.      On 28 May 2002, Mr Zheng married Dung Tran, an Australian citizen, in China.

8.      On 11 June 2002, Mr Zheng, using his apparently true identity, applied for a combined subclass 309 spouse (provisional) visa and subclass 100 (migrant) visa. On 17 March 2003, Mr Zheng was granted a subclass 309 (provisional) visa.  He subsequently arrived in Australia, with his two daughters, Jun Li Zheng and Jun Fang Zheng, on 30 March 2003.

9.      On 9 March 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Compliance Section, informed Mr Zheng that he was considering cancelling his provisional spouse visa on the ground that he did not pass the character test because of his past and present general conduct including that he had previously been detained in and removed from Australian as an unlawful non-citizen while using a false identity and that he had previously applied for a protection visa, using the false identity, which had been refused (G6 p21).

10.    On 26 March 2004, Mr Zheng’s then solicitors, Le Vaccaro Lawyers, made submissions to the DIMIA’s Character Section, admitting that Mr Zheng did arrive in Australia on a visitor visa and that he remained in Australia unlawfully when the visa expired and that he did apply for a protection visa which was refused.  Notwithstanding this, the solicitor submitted that Mr Zheng was a person of good character who had demonstrated this by establishing a stable home for his family and conducting himself according to law, he was no threat to the Australian community, there was no likelihood of repeating his past conduct, and his daughters and spouse would suffer financial and emotional hardship if he were forced to return to China (G7 pp30-32).  Le Vaccaro Lawyers also submitted for consideration, a reference from Mr Zheng’s employer, Panzarino Interiors dated 23 March 2004, and a letter from Dung Tran, Mr Zheng’s wife, stating that he provided financial support for her and her sick mother as well as his two daughters and that ”the family will definitely fall apart, and experience difficulties around the house and financial wise” (G7 p36).

11.    On 17 August 2004 (G8 p41), a delegate of the Minister decided to refuse Mr Zheng’s subclass 309 spouse (provisional) visa on the ground that he did not pass the character test because of his past and present general conduct and having exercised her discretion to cancel Mr Zheng’s visa (G1 pp1-12).  Mr Zheng acknowledged receipt of the decision on the same day and on 23 August 2004 lodged an application for a review of the decision by the tribunal.

12. At the hearing, the applicant was represented by Mr L Karp, of counsel, instructed by Anne O’Donoghue & Associates, solicitors, and the respondent was represented by Stella Koya, solicitor, of Phillips Fox, solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence produced by the parties at the hearing.

Relevant Law and Policy

13. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c)(ii), as follows:

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

…

(ii)      the person’s past and present general conduct;

the person is not of good character; …

14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. Section 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, they exercise the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

16. The issue for the tribunal to determine in this case is, therefore, whether Mr Zheng is not of good character having regard to his past and present general conduct. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence

17.    Mr Zheng and Mrs Tran gave oral evidence in person, as did Jun Li and Jun Fang.  A Mandarin interpreter was sworn in to assist the witnesses.  Ms Peggy Lee, a clinical psychologist, also gave oral evidence.

The Character Issue

18. In his oral evidence Mr Zheng admitted that when he came to Australia on 5 September 1996 on a visitor visa, he did not come as a tourist but at all times intended to obtain work, in contravention of the terms of his visa. After his visitor visa expired on 5 December 1996, he remained in Australia unlawfully and continued to work without permission. Mr Zheng also admitted a number of particularly serious offences under the Migration Act involving the making of false statements. In his protection visa application lodged on 20 July 1998, he claimed to have suffered persecution in China on the grounds of his Catholic religion. He said that he did so on the advice of his then migration agent (whose identity has not been made known to the tribunal) who told him that otherwise the department would reject his application. At the hearing he freely admitted that he was not a Catholic, in fact he is a Buddhist, and had never been persecuted.

19.    When the Minister’s delegate on 29 September 1998 refused the protection visa application, Mr Zheng applied to the Refugee Review Tribunal (RRT) for review of that decision.  In that process he continued to rely on the same grounds that he knew to be false.

20. The RRT affirmed the delegate’s decision on 31 May 1999, and on 21 July 1999 Mr Zheng applied for ministerial intervention pursuant to s 417 of the Act, still advancing the false statements used as the basis for his original protection visa application. The Minister wrote to Mr Zheng on 2 December 1999 informing him that his request for ministerial intervention was denied, but the visa applicant did not leave Australia when the matter was concluded. He continued to remain in Australia unlawfully until he was located on 1 February 2002 and taken into detention, subsequently being removed to the People’s Republic of China on 19 March 2002.

21.    On 11 June 2002, Mr Zheng lodged an application for a subclass 309 spouse (provisional) visa under the name Wen Quing Zheng.  He admitted at the hearing that he did so because he believed that he would never be able to return to Australia if he applied in his real name, the name under which he had been removed from Australia in March 2002.  In the application he failed to disclose details of his previous visit to Australia, his application for a protection visa, his bridging visa, the refusal of a protection visa, his RRT appeal and unsuccessful application for ministerial intervention.  Nor did he disclose the circumstances surrounding his removal from Australia or the debt he owed to the Commonwealth in respect of detention expenses. 

22.    He used a false name and a false date of birth.  His spouse visa application was successful and he arrived in Australia under his new false identity on 30 March 2003. 

23.    This succession of serious violations of immigration law, all of them admitted, constitutes an unusually serious record.  Even Mr Zheng’s counsel had to describe it as “blatant conduct”.  It is clear evidence of contempt or disregard for the law and involved the use of a bogus passport. 

Discretion

24. The above evidence concerning the visa applicant’s numerous breaches of the migration laws are relevant also to the exercise of the discretion if it is decided that the visa applicant fails the character test. His admission that he always intended to work in Australia, despite coming on a visitor visa, is the first indication of a pattern of premeditation. He was knowingly involved in the submission of the protection visa application, the review application and the s 417 application using claims that he knew to be false. In his oral evidence he said that he did not know that what he was doing was wrong until he was caught in February 2002, because of his almost total lack of formal education and his ignorance of Australian law. Yet he is clearly of average intelligence and well able to learn from the experiences of life. He was aged 33 when he first came to Australia and had worked for some years in various parts of China in the construction industry. During that time he must have had some involvement with the submission of official documents to the government, either personally or through friends or acquaintances, and must have been aware that the giving of false information is regarded as wrong and can have serious adverse consequences.

25.    Even on his own version of the story, he continued with the same pattern of criminal conduct after he was detained and removed in 2002.  At the hearing he said that he set in train the process of obtaining a false passport as soon as possible after he returned to China.  For this purpose he used the services of an acquaintance who worked as a builder in Hu Bei and who said she could obtain such things through a contact she had in the Security Council.  Mr Zheng paid her approximately $1000 and then a further $6000, which was paid to the Security Council officer.  He admitted that this was not the proper procedure, because it would be normal to apply in his real name and to produce a genuine identity card and residence book.  Instead, he had used a Chinese identity card in the false name.  When asked whether he realised that he was violating Chinese law, he replied, “I broke the law but in China it’s okay”.  Whether by that he meant that such transactions are commonplace in China, or that they are considered acceptable behaviour there, was not clear.  If the latter, the proposition seems doubtful.  Under Chinese legislation, accepting bribes of more than $12000 is punishable by death.  An estimated 3000 executions, many if not most of them being of corrupt officials, are carried out each year (The Economist Intelligence Unit, Country Briefings: China – Political Forces, 9 February 2004 ( BBC News, “China executions ‘part of culture’“, 6 July 2001 ( “China defends keeping execution statistics secret”, 6 February 2004 (  But at all events it is plain that he knew that he was acting in breach of Chinese law and must inevitably have known that by entering Australia on such a false passport, and by denying in his spouse visa application that he had been to Australia before and had been detained and removed, he was also in breach of Australian law.  This pattern suggests a real risk of similar conduct in the future, whether in relation to migration matters such as converting his provisional spouse visa into a permanent one, or in other governmental or private dealings in Australia.

26.       A substantial part of the evidence related to the best interests of the child within the meaning of paragraphs 2.13 to 2.16 of Direction No 21.

27.    The applicant Mr Zheng has four children from a previous marriage.  Two live in China with their mother, while the other two have been living in Australia with their father and stepmother for approximately eighteen months.  Jun Li will be 18 next April, and Jun Fang in March 2006.  Mrs Tran has two children by a previous marriage, one of whom is a daughter named Anna, but there is no evidence concerning them.  Mrs Tran says that she regards Mr Zheng’s two daughters as her own children and that they too reciprocate those feelings. 

28.    Apart from that, the only evidence relating to the girls’ interests is their own.  They swore identical affidavits (Exhibits A5 and A6) and both gave oral evidence at the hearing. 

29.    Jun Li said nothing about her education in China or Australia, but Jun Fang stated that she prefers school in Australia, where she feels more relaxed and finds the subject matter more useful.  Her grades in China she described as average, but despite repeated questions would not say how her Australian grades compared with that standard.  She claims to have made substantial progress, especially in English and science but, like her sister, she needed an interpreter for most of the time when giving oral evidence.

30.    Both girls said they preferred to live in Australia, but neither would be drawn on what they would do if they were to return to China with their father, with or without Mrs Tran.  They did not answer the questions asked of them on that point.

31.    Much of their evidence related to the four years they spent living in China with a family who were friends of their father.  Mr Zheng periodically sent funds to the family for the girls’ living expenses.  The couple had two children of their own, a younger girl and an older boy.  The evidence relating to their life during that period was of minimal relevance, as there was no evidence given that they would return to live with that family if they were to go back to China, but it became significant in another way.

32.    Jun Li stated that nobody in the family cared whether she and her sister had enough to eat or wear.  They were asked to do between an hour and two hours of housework every day while the children of the household did little.  The boy who shared the room with the two girls was violent towards them, delivering painful blows to the back and other parts of the body.  They had complained to his parents but they did not care.  She and her sister attended the local public school while the other children attended a far superior private school that charged high fees.

33.    Jun Fang, however, painted a significantly different picture.  While the parents did not treat her and her sister as well as their own children, they had suffered no physical violence.  In the course of altercations among the children, the boy had on occasion hit them around the shoulders, but not seriously or so as to cause pain.  The parents pretended to blame their own children for these episodes, she said, but in reality blamed her and her sister.  They had, however, attended the same public high school as the boy had; when asked if she was quite sure about that she said she was.  That difference between the girls’ two versions was irreconcilable.  While children might differ in the way they perceive frictions and tensions within a household, there is no possible way in which anyone could be mistaken about which high school he or she attended. 

34.    Paragraph 2.16(f) of Direction No 21 requires the tribunal to consider the impact of the non-citizen’s prior conduct on the child.  Mr Zheng was first married in 1986.  There was no marriage certificate for the union, Mr Zheng said, because the government charges for these certificates and in the countryside people cannot afford the fee.  Consequently, while they consider themselves married, the union is not legally recognised and no dissolution is required if the parties separate, although if that happens the subsequent arrangements may be recorded in a written agreement.  The spouse visa application did, however, give dates for the marriage and divorce. Mr Zheng had often been required by the scarcity of work to find employment in other provinces, returning home to his family whenever he could.  When he departed for Australia in 1996 he did not tell his wife how long he was going to be away.  It appears that he may not have communicated with his wife and family in those earlier years.  According to Jun Fang there was no telephone contact, and neither girl mentions the arrival of any letters.  At all events, in 1999 their mother decided to end the marriage and departed with two of the children, leaving Jun Li and Jun Fang with the family mentioned above.  From 1999 to March 2002, Jun Li said, that they had no contact with their father at all. 

35.    The marriage break-up seems to have hurt the two girls deeply.  They felt their mother had abandoned them, they heard nothing from their father and had a generally unhappy time in the care of their father’s friends.  Mr Zheng’s own conduct may well have contributed substantially to this trauma.  Leaving his family without saying how long he would be away and apparently going for years on end without telephoning or arranging for a telephone message to get through to them, or arranging for a letter to be sent (Mr Zheng himself cannot read or write) could well have led his wife to the conclusion that the marriage was over.  It would appear from the evidence that Mr Zheng only resumed contact with his two daughters around the time that he was removed from Australia and shortly before he lodged his spouse visa application.  At the very least his conduct cannot be regarded as being that of a responsible and solicitous father.  That is relevant to paragraph 2.16(f).

Evidence relating to other considerations

36.    Among the other considerations the tribunal is required to balance against the primary considerations is any genuine marriage to an Australian citizen, bearing in mind the circumstances in which the relationship was established and whether at the time the relationship began the Australian partner knew of the character issues involved.  Later on, when the spouse visa application form was prepared, she did not read it but was aware that her husband was using a false name.

37.    Mrs Tran had married her first husband in Vietnam.  After they came to Australia the marriage was not a happy one as her first husband was a gambler, to such an extent that at one point they were in danger of losing their house as a result of defaulting on mortgage payments.  Mrs Tran had undertaken two jobs to keep the family afloat, paying no tax on her second job, and was able to meet the family’s commitments.  She became increasingly depressed, however, and her depression intensified after her husband died in 1999 while sleeping in bed beside her.  She was able to repay all the family’s debts, however, and the house she now lives in is fully paid for.  When depressed she would occasionally take a Panadol before retiring at night. 

38.    Mrs Tran met Mr Zheng in June 2001 and he moved in with her in November of that year.  She found him far preferable to her first husband.  He does not gamble or even argue; “he gives in on everything”, she said.  Both parties say that Mrs Tran was totally unaware of Mr Zheng’s unlawful status until he was apprehended and taken to Villawood Detention Centre.  Mr Zheng says that they had decided to marry before he was apprehended, though Mrs Tran says that they had only considered it at that stage.  She visited him regularly while he was in Villawood and on one of those visits agreed with the plan that he would return to China, change his name and return to Australia.  She said that she did not know whether or not that would be wrong, in fact she did not think about whether it was wrong at all. 

39.    On 19 March 2003 the applicant was removed from Australia, and in April Mrs Tran travelled to China to visit him.  On 28 May 2002 the couple were married and two weeks later Mr Zheng lodged his application for migration to Australia on spouse grounds, using a different name.  He arrived in Australia on 30 March 2002 as the holder of a provisional spouse visa, subclass 309.

40.    Mr Karp contended that the applicant’s conduct towards Mrs Tran was “exemplary”, but in at least one key respect that was not the case. 

41.    By his own account he became involved with Mrs Tran, began to live with her and became engaged to her without informing her that he was living and working in Australia unlawfully.  Withholding such vital information from one’s fiancée is anything but exemplary and instead points to an intention of exploiting a possibly vulnerable woman for immigration purposes. 

42.    The other relevant consideration dealt with by the evidence was the question of hardship to Mrs Tran.  She said that her relationship with Mr Zheng had eased her depression, had made her happy and had given her a focus in life.  If her husband were to return to China, she said, she would have “no more hope, no happiness or reason to live”.  She has not made any inquiries as to whether she would be able to obtain a visa to live in China and had in fact given no thought to the possibility of moving to that country.  She did not like the climate and on her previous visits had suffered from back pain, shortness of breath, headaches and stomach upsets.  She had visited local doctors but did not find the medicines they prescribed suitable, and instead used the medications she had brought from Australia.

43.    Most of the evidence on the issue of hardship related, however, to Mrs Tran’s health and the possible effect that an adverse decision might have on it.  A cardiologist, Dr Peter Kelleher, reported in January 2002 that Mrs Tran had had episodes of chest pain since her husband died in 1999, but that the pain did not appear to be typically anginal.  Her blood pressure had been elevated at times, as had her cholesterol.  His examination had not disclosed any clear signs of cardiac abnormality, but he thought that a stress MIBI scan, which is a more sensitive test, could be indicated.  The evidence did not show that a MIBI scan or other tests had been administered after that consultation.

44.    The bulk of the evidence relating to Mrs Tran’s health came, however, from Ms Peggy Lee, a clinical psychologist with special expertise in working with Asian populations.  In her report of 1 October 2004 (Exhibit A7), Ms Lee wrote “During the consultation [on 29 September 2004] Ms Tran had serious panic attack and took some time to recover in order to continue.  I believe that given Ms Tran’s current state of health there would be considerable hardship if her husband where [sic] required to depart Australia”.  There was more than one reason for the panic attack, Ms Lee said in her oral evidence.  It was the result of an accumulation of factors, including the death of her first child, her first husband’s gambling and the fact that he had died in the house.  In Asian belief, she said, this was detrimental because it was thought that the spirit of the deceased was still walking around the house.  Her own children were older now and her concerns over her husband’s possible removal dominated her thinking.  At the consultation she had threatened suicide and Ms Lee thought that there was a 100 per cent chance that she would act on the threat if the reviewable decision were affirmed.  Indeed, she thought that Mr Zheng would also take his own life.  Ms Lee thought that Mrs Tran needed to consult a psychiatrist in order to obtain appropriate medication to treat her mental problems. 

45.    At the conclusion of her evidence-in-chief Mrs Tran appeared to suffer from another panic attack while in the witness box.  In light of this the respondent’s representative waived her right to cross-examine Mrs Tran.

46.    The other evidence in the case does not mention any other or earlier panic attacks or suicide threats by Mrs Tran.  Neither Mr Zheng nor either of his daughters made any mention of these two matters, nor did they suggest that Mrs Tran has psychiatric or psychological problems of any kind. Presumably Mrs Tran’s daughter Anna could have given evidence about her mother’s state of health, but she was not called as a witness.  Four sets of medical progress notes made between November 2001 and August 2002 (Exhibit A9) refer to some problems with sleeplessness and on three occasions mention her as having sought treatment in order to cope with irritation caused by her daughter.  Again, there is no reference to panic attacks, although one of the consultations in question occurred only a week after Mr Zheng had been apprehended and taken to Villawood.  One cannot avoid noticing that the only two panic attacks of which there is any evidence occurred at times highly convenient for Mrs Tran: the first at the consultation with her clinical psychologist, and the second as a climax to her evidence-in-chief at the hearing and which enabled her to avoid cross-examination.  The evidence is insufficient to support a conclusion that the attacks might have been feigned, but given Mrs Tran’s clear complicity in Mr Zheng’s wrongdoing and the fact that the symptoms of a panic attack can be found described in any medical dictionary, some doubts linger.

47.    Ms Lee referred to the panic attack in her consultation rooms in her report of 1 October 2004 (Exhibit A7).  She did not, however, diagnose any underlying disorder of which the attack was a manifestation, though she made a point of saying that she was qualified to diagnose mental disorders.  Nor did she explain why the panic attack was a predictor of certain suicide.  According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision 2000 (“DSM-IV-TR”), panic attacks by themselves are not a disorder for the purposes of the International Classification of Diseases.  They can be caused by general medical conditions such as cardiac disease (and Mrs Tran had received some specialist cardiac care) and also occur in the context of some psychotic conditions and a range of other disorders such as obsessive-compulsive disorder.  There is a condition known as Panic Disorder (consisting of 300.01 Panic Disorder without Agoraphobia and 300.21 Panic Disorder with Agoraphobia), which on the face of it does not fit the present case.  The description of that condition does not mention any risk of suicide (DSM-IV-TR pp 431-441).

48.    A further option relevant to the question of hardship is the possibility that Mrs Tran could be reunited with her husband and stepdaughters by relocating to China (or perhaps some third country).  Mr Zheng did not refer to that option either in his affidavit or in his oral evidence and Mrs Tran made no reference to it in her affidavit either.  In her oral evidence, however, Mrs Tran pointed out that she is not a citizen of China and needed a visa to go there.  She did not know whether she would be eligible for a spouse visa to live in China and had made no inquiries about the matter.  She said that while in China with Mr Zheng, she had not discussed with him what they would do if his application for an Australian spouse visa were unsuccessful, nor specifically, whether they could live in China.  She had simply not thought about the possibility, though she is culturally Chinese and her language is Mandarin.  In any event she did not find the climate suitable, but did not say in what respect – and, of course, China has a range of climates.  She also said that she was often sick while in China, suffering from back pain, shortness of breath, headaches and a sore stomach.  She had seen doctors while there, but did not find the medicines they prescribed suitable, and instead used the medications she had brought from Australia.  There is no medical evidence about any health problems she may have had in China, but back pain is a common complaint of middle age the world over, while her visits to a cardiologist before going to China may have some bearing on the complaint of shortness of breath.  Beyond that, one would expect the indispositions commonly encountered by travellers in other countries.

49.    Neither of the girls appeared to have given thought to the possibility of life for the family together in China.  Jun Li did not reply when asked how she felt about the possibility of living with her family in China.  Jun Fang twice indicated in her oral evidence that until the hearing she had not been aware that if the Minister’s decision were affirmed she would have to return to China.  That was at odds with her affidavit in these proceedings in which she declared, “I know in my heart that if we are forced to return to China it would mean that I would lose a mother for the second time”.  She said that she had not thought about the possibility of living in China again.

50.    The alleged failure of all those concerned to inquire into, or consider, the possibility of living together as a family in China (or possibly a third country) raises the clear inference that the goal of this application is not so much family reunification as living in Australia despite Mr Zheng’s prior blatant breaches of the law and Mrs Tran’s admitted complicity in the false passport and visa application episodes. 

Application of the Law and Findings of Fact

51. As was stated above, the first issue for the tribunal to decide is whether, pursuant to s 501(6)(c), Mr Zheng passes the character test having regard to his past and present general conduct. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

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

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

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

53. Secondly, the tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the tribunal decides that, in its view, the visa applicant, Mr Zheng, does not pass the character test, the tribunal will proceed to consider the exercise of the discretion in s 501(1) to not refuse to grant a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, the tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

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

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

56. Before making a decision on whether Mr Zheng passes the character test, it is appropriate to set out the relevant findings of fact. I find that on 5 September 1996, the applicant travelled to Australia on a visitor visa, at all times intending to breach its conditions by working without permission and did so. After the visitor visa expired on 5 December 1996 the applicant remained unlawfully in Australia. On 20 July 1998 he applied for a protection visa on the false ground of religious persecution. He maintained those false claims throughout the process of review by the Refugee Review Tribunal and special consideration of ministerial intervention under s 417 of the Act. After the applicant was sent a letter dated 20 December 1999 informing him that his request for ministerial intervention was refused, he did not depart Australia but continued to remain in Australia unlawfully. The applicant was removed to China on 19 March 2002, and on 11 June 2002 lodged in China an application for a subclass 309 spouse (provisional) visa in a false name and using a false passport. In his application for the spouse visa, the applicant failed to disclose details of his previous stay in Australia, his bridging visa, his protection visa application, his appeals and the circumstances surrounding his subsequent removal from Australia. Not until after the Department in its letter to him dated 9 March 2004 confronted Mr Zheng with the facts of his false identity did he disclose any of the facts relating to his situation. That is an unusually serious record of contempt and disregard for the immigration laws of the Commonwealth and it includes several different false or misleading declarations and the use of a bogus passport. Mr Karp conceded that Mr Zheng had flouted the immigration laws of Australia. On these grounds, there can be no doubt that he does not pass the character test, and specifically s 501(6)(c)(ii).

57. Having decided that Mr Zheng does not pass the character test, the tribunal must then consider the exercise of the discretion under s 501(1) to decide whether to not refuse the grant of a visa to Mr Zheng. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

58.    Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)      the protection of the Australian community, and members of the community;

(b)      the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

59.    With regard to the protection of the Australian community, paragraph 2.4 states:

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…

60.    Paragraph 2.5 identifies the factors relevant to assessing the level of risk to the community of the entry or continued stay of a non-citizen.  They 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).

61. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

62.    With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

63. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. The applicant has committed breaches of this type, several of which must be regarded as very serious even on their own. Cumulatively, they are extremely serious.

64.    In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.  Past cases before the tribunal disclose a regular incidence of fraudulent applications and attempted fraud in China (see, for example, Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 at paragraphs 112 and 127; Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 826 at paragraph 50; Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038 at paragraph 70; and Re Fang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1195 at paragraph 3). To grant a visa to a person with such an egregious record would send entirely the wrong message to others who might be contemplating engaging in conduct of that kind.

Expectations of the Australian Community

65.    As regards the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

66.    In my view the community expects that the migration program will be administered with integrity and humanity.  In a situation where the number of visas available to prospective immigrants is necessarily limited, that implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.  In this case I believe the community would consider that Mr Zheng’s record of immigration law violations, and Mrs Tran’s admitted complicity in it since 2002, would weigh heavily in favour of cancelling the visa in this case.

The Best Interests of the Child

67.    The third primary consideration is the best interests of the child.  The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.

68.    In this case, Mr Zheng has two children in Australia whose interests must be considered, his daughters Jun Li Zheng and Jun Fang Zheng, aged 17 and 16 respectively. He also has two children who reside in China with their mother, but there is no evidence about their circumstances.  Jun Li Zheng and Jun Fang Zheng are currently enrolled at Cabramatta High School (G p33).  They have made progress in learning English, but inevitably their skills are limited and they needed an interpreter for most of the time while they were giving evidence.  Until the last 18 months they had spent their entire lives in China and could reintegrate into that country with minimal adjustment.  The English skills they have obtained in Australia could well help them in their education and future employment, as could the familiarity they have gained with a western-style society.  They would both prefer to be living with their stepmother and father, especially after the experience of being left by both parents and forced to live with friends for several years, and they would benefit from living with their father and stepmother.  But they would not answer questions about the possibility of living as a family in China.  This reluctance mirrors their parents’ failure to inquire about the possibility of Mrs Tran’s relocating to China, and as in their case it appears to be calculated to hamper the tribunal’s consideration of that option by restricting the evidence available.  Both girls will soon be 18 and are quite old enough to be legally responsible for their actions and statements.  In that context it may be noted that, while the character test does not apply to the girls in these proceedings, they may both have engaged in wrongdoing of their own, giving prima facie false or misleading evidence to the tribunal. 

69.    Given their evident preference for living in Australia rather than China, I conclude that they would suffer some hardship if they were required to return to China.  That hardship would not, however, be substantial, particularly as they would be able to maintain their relationship with their father, and it does not outweigh the primary considerations in this case. 

Other Considerations

70.    With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct;  and whether the application is for a temporary visa or permanent visa.

71.    While the evidence discussed above suggests that Mr Zheng became engaged to Mrs Tran with the aim of securing a migration outcome, it does not go so far as to support a finding that the marriage as it exists now is not genuine.  Mrs Tran says it has given her a new focus in life now that her own children are adults and Ms Lee’s evidence supports that.  Mrs Tran would suffer emotional hardship if Mr Zheng were removed from Australia.  He has also supported Mrs Tran and her elderly mother (to what extent is not clear) at a time when Mrs Tran herself is unemployed.  As against that, Mrs Tran was fully complicit in the applicant’s plan to obtain a false passport, to apply for a spouse visa in that false name and to withhold crucial information when making the application.  She was a mature woman of 44 when she married the applicant in full knowledge of his scheme for returning to Australia unlawfully and of the possible consequences of that enterprise.  Her predicament is the consequence of her own conscious and fully informed choices.  Further, there appears to have been a concerted effort by the two parties to refrain from exploring other possible courses of action that would enable them to be together, such as living in China or in some third country.

72.    Finally in relation to hardship there is the issue of Mrs Tran’s mental health.  The clinical psychologist Ms Peggy Lee said that in the course of her consultation with her, Mrs Tran had threatened suicide if the present application for review were unsuccessful.  She estimated the probabilities of Mrs Tran’s acting on that threat as 100 per cent and added that Mr Zheng would probably do likewise.  Mr Karp argued that this was not a case of suicide being threatened in an attempt to manipulate the tribunal, as the evidence concerning the risk of suicide had come from the psychologist, Ms Lee, not from Mrs Tran herself.  That overlooks Ms Lee’s statement that Mrs Tran had made a suicide threat (apparently her first) at her consultation with Ms Lee on 29 September 2004.

73.    For the reasons given above, without further expert evidence it is not possible to make findings about Mrs Tran’s mental state, beyond saying Ms Lee’s failure to attribute the panic attack or the suicide threat to any particular underlying disorder, together with her readiness to classify Mr Zheng as a case of high suicide risk without the benefit of a consultation with him, does limit the assistance the tribunal can derive from Ms Lee’s evidence.  Nevertheless I propose to follow the precautionary principle and assume that Ms Lee’s prognosis is, or may be, correct.

74.    If Mrs Tran’s mental condition is so perilous that the tribunal’s refusal to make orders pursuant to her preferred option is 100 per cent certain to result in suicide, one would think that the proper course would be immediate referral for medical and psychiatric evaluation or treatment or both.  Under the Mental Health Act 1990 (NSW) a person may be classified as mentally ill if there are reasonable grounds for believing that care, treatment or control of the person is necessary inter alia for the person’s own protection from serious harm (s 9). A person may be classified as mentally disordered if his or her behaviour is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control is necessary for the person’s own protection from serious physical harm (s 10). Either of these classifications may be the basis for admission to a psychiatric hospital, whether voluntarily or involuntarily (ss 21-27). Yet Ms Lee did not make such a referral and offered no reason for not doing so. Nor did she indicate that protective action under the MentalHealth Act 1990 might be appropriate. Dangers of this kind should be dealt with by the appropriate means, and the Administrative Appeals Tribunal Act cannot be regarded as a substitute for needed medical or psychiatric care.

75.    I therefore find that neither the other considerations in this case, nor the interests of the children, outweigh the other primary considerations, protection of the community and community expectations. 

76.    The reviewable decision should be affirmed.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

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

Date/s of Hearing  7 and 8 October 2004
Date of Decision  25 October 2004
Counsel for the Applicant        Mr L Karp
Solicitor for the Applicant         Anne O'Donoghue & Associates
Solicitor for the Respondent     Ms S Koya, Phillips Fox