Zhu and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1103
•25 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1103
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1461
GENERAL ADMINISTRATIVE DIVISION ) Re BAO WEI ZHU Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, Q.C., Deputy President Date25 October 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] The Hon R N J Purvis, Q.C. Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – whether visa applicant not of good character – discretion of Tribunal assessed – words “good character” considered visa applicant not of good character – decision under review affirmed.
LEGISLATION
Migration Act 1958 sections 501
Ministerial Direction 21
CASE LAW
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 68
Re Ayaad and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 935
REASONS FOR DECISION
25 October 2004 The Hon R N J Purvis, Q.C., Deputy President the application
1. On the 15th of August 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) refused an application made by Ms Xue Yun Yu (“the Visa Applicant”) to be granted a subclass 309 Spouse (Provisional) Visa. The refusal was made on the ground that the Visa Applicant was found to be not of good character pursuant to the provisions of section 501(1)(6)(c) of the Migration Act1958 (“the Act”) and the discretion conferred upon the decision maker was not exercised in her favour.
2. In the relevant reasons for the decision it was stated inter alia:
“…In summary, Ms Yu associated with a person involved in criminal conduct in order to enter Australia on a bogus passport with a fraudulently obtained visa with the intention of remaining beyond the validity of that visa. She continued to use this false identity to lodge a protection visa application, and appears to have made frivolous protection visa claims; she used the bogus passport as a general identity document; she evaded DIMIA and worked unlawfully for several years; and she departed Australia only after being located and detained.
In view of the above I find that Ms Yu is not of good character as a result of her past and present general conduct.”
issues for decision
3. The relevant issues for my decision in this application are:
·Whether the false statements, false representations and false documents made and caused to be created by the Visa Applicant are sufficient to enable the Tribunal to find that she is a person not of good character within the meaning of section 501 of the Act and the Minister’s Direction 21.
·Whether the circumstances peculiar to this matter are such as to warrant the Tribunal after considering all relevant considerations, to exercise it’s discretion in favour of the Visa Applicant.
4. The Respondent in support of the refusal decision maintains that as to her character the Visa Applicant:
·Used false documents to enter Australia contrary to the provisions of section 234 of the Act
·Used a visa obtained on false name to enter Australia under name of and granted to another person contrary to the provisions of section 236 of the Act
·Filled out a passenger entry card with false particulars contrary to the provisions of the Act
·Worked within a month of her arrival in Australia having declared a purpose entering Australia as a tourist
·Remained in Australia unlawfully for not less than 4 and ½ years
·Made two false protection visa applications under a false name and provided false information
5. And as to the exercise of discretion says:
·The Visa Applicant’s conduct was very serious misconduct
·She used the migration system to assist her in remaining in Australia
·She committed breaches of the Act
·There is a strong likelihood of the Visa Applicant repeating her misconduct
·She used her false passport to obtain goods and services in Australia and did so when in a relationship with the Applicant and with his knowledge
·Refusal to the Visa Applicant would send a clear message to the Chinese community and Migration Agents working in that community
·Australian community would not expect a visa to be granted in these circumstances
·There is no evidence of a child or children being adversely affected by refusal to grant a visa
·Hardship will be experienced by the Applicant and Visa Applicant, [but] such hardship was brought upon the Applicant himself by way of his participation in the second false protection visa application and his knowledge of the migration status of the Visa Applicant at the time of marriage.
the hearing
6. At the hearing of the application the husband of the Visa Applicant Mr Bao Wei Zhu (“the Applicant”) represented himself. The Respondent was represented by Mr Ishan Muthalib, a solicitor of Mrs Blake Dawson Waldron, Lawyers.
7. There was introduced into evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Act 1975 marked T1 to T21 and S1 to S11. Documents tendered by the Applicant were also admitted and marked accordingly namely:
EXHIBIT DESCRIPTION DATE
A Letter of Dr Quang Pham 6 September 2004
B Letter from Southern Hemisphere Trading 8 February 2004
Pty/Ltd together with attachments
C Photocopy of a page from Mr Zhu’s passport
8. The Applicant and the Visa Applicant gave oral evidence on which they were each cross examined.
chronology of significant events
9. The Respondent in its Statement of Facts and Contentions set forth a chronology of events upon which it relied. The Tribunal is satisfied with the accuracy of such chronology and subject to some minor alterations adopts it as an accurate reflection of relevant events.
Date Relevant Event
1950, 22 February The Applicant born in China
1966, 20 March Visa Applicant born in China
1998, 5 JuneSubclass 676 tourist visa granted to Visa Applicant in the name of Ms Young Yu Du
1999, 29 January Visa Applicant arrives in Australia on a tourist visa using the name Young Yu Du and a false passport in that name
1999, 12 March Visa Applicant lodges protection visa application under name of Young Yu Du and was granted a Bridging visa
1999, 22 March Application for protection visa refused
1999, 19 April Visa Applicant appeals to Refugee Review Tribunal
1999, 26 May Refugee Review Tribunal affirms the refusal decision
1999, 30 June Bridging visa ceases and Visa Applicant becomes unlawful non -citizen from 01/07/1999 to 25/06/2000
2000, 26 June Visa Applicant lodges second protection visa application under name of Young Yu Du and request for bridging visa
2000, 11 August Application for protection visa refused
2000, 9 September Visa Applicant appeals to Refugee Review Tribunal
2001, 23 January Refugee Review Tribunal affirms the decision under review
2001, 27 February Bridging visa expires, Visa Applicant becomes an unlawful non- citizen from 28/02 2001 to 14/01/2003
2002, 3 December Visa Applicant located by DIMIA at her workplace and taken into immigration detention
2003, 15 January Visa Applicant granted bridging visa with a surety
2003, 24 January Visa Applicant and Applicant marry
2003, 28 January Visa Applicant departs Australia
2003, 4, April Visa Applicant lodges subclass 309 Spouse visa using proper name
legal provisions and direction
10. The provisions of the Migration Act 1958 (“the Act”) here relevant are:
“501 (1) Refusal or cancellation of visa on character grounds
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section a person does not pass the character test if:
…
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i)…
(ii) the persons past and present general conduct
…
the person is not of good character.
499 Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about
(a) the performance of those functions; or
(b) the exercise of those powers.
(2A)A person or body must comply with a direction under subsection (1).”
11. The words “good character” as used in section 501 of the Act:
“should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as fact, where the latter is a review of subjective public opinion”.
(See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94)
12. It is not necessary for there to be a continuance of the incidence of general conduct. It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying “the character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).
13. The Ministerial Direction 21 (“the Direction”) sets out matters to which decision-makers are to have regard in determining whether or not a Visa Applicant is a person of good character and accordingly whether or not the person passes the character test. One factor to be taken into account, as here relevant, is whether the Applicant has shown contempt or disregard for the law including Immigration Law (paragraph 1.9 (a) (b)). Thus Paragraph 1.9 (b) requires consideration to be given to:
“Whether the non-citizen has in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.”
14. If the Tribunal is not satisfied that the Visa Applicant passes the character test, the issue for determination, as already indicated above, is whether the decision of the Minister’s delegate be affirmed or set aside by exercise of the residual discretion under section 501 (1) of the Act. In making this determination the Tribunal is to have regard to the above mentioned Direction and as here relevant to the following provisions:
“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.
The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. 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.”
15. The three primary considerations that must be taken into account by decision-makers are the protection of the Australian community, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
16. With reference to the protection of the Australian community the Direction provides that the factors relevant to an assessment of the level of risk to the community of the entering or continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as much as does the character issue, makes specific reference to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act (see below) makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non compliance.
17. The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648). It is important to note the emphasis placed on “the observance of truth”. It is conceivable that documents can be false and information provided which is false without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information and as to whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage. As was stated in Irving (supra) the moral qualities of a person are the factors to which attention is to be given.
“SECT 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.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
SECT 235
Offences in relation to work
(1) If:(a) the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work that the non-citizen may do in Australia; and
(b) the non-citizen contravenes that condition;
the non-citizen commits an offence against this section.
(2) For the purposes of subsection (1), a condition restricts the work that a non-citizen may do if, but not only if, it prohibits the non-citizen doing:
(a) any work; or
(b) work other than specified work; or
(c) specified work.
(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.
(4) If:
(a) there is a criminal justice certificate or a criminal justice stay warrant about a non-citizen; and
(b) the person does any work within the meaning of subsection 160(2), in Australia, whether for reward or otherwise;
then without limiting the operation of any other provision of this Act, the person commits an offence against this subsection.
(4A) Subsection (4) does not apply to a non-citizen who holds a criminal justice stay visa, but this subsection does not affect the operation of subsection (1).
Note: A defendant bears an evidential burden in relation to the matters in subsection (4A) (see subsection 13.3(3) of the Criminal Code).
(4B) An offence against subsection (1), (3) or (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) The penalty for an offence against subsection (1), (3) or (4) is a fine not exceeding $10,000.
(6) For the purposes of this section, a reference in a visa, and the reference in subsection (3), to the performance of any work in Australia by a person, shall each be read as not including a reference to the performance by the person of any work of a prescribed kind or of work in prescribed circumstances.
SECT 236
Offences relating to visas
(1) A person is guilty of an offence if:(a) the person uses a visa with the intention of:
(i) travelling to Australia; or
(ii) remaining in Australia; or
(iii) identifying himself or herself; and
(b) the visa is a visa that was granted to another person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) A person is guilty of an offence if:
(a) the person has a visa in his or her possession or under his or her control; and
(b) the visa is a visa that was not granted to the person.
Penalty: Imprisonment for 10 years or 00 penalty units, or both.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) The fault element for paragraph (2)(a) is intention.
Note: Section 5.2 of the Criminal Code defines intention.
…”
relevant factual situation and findings of fact
18. Both the Applicant and Visa Applicant were born in China. The Applicant is one of five children born to his parents all of whom other than himself, still reside in Shanghai. He was first married in 1980 of which marriage there is one child, a son who also resides in China. He first came to this country in June 1989, leaving his wife and son, and on a student visa to study English. He was then 39 years of age. He was granted a residency visa that year, consequent upon the Tiananmen Square event, and obtained permanent residency in 1998/1999. The Applicant obtained a divorce in Australia from his first wife in 1992. Since that time he has returned to China on a number of occasions, his last visit being in July 2004. He had a relationship with an “ex-girlfriend” in Australia of which relationship a daughter was born. She is now five years of age. The daughter is living with her mother and is often visited by the Applicant who pays child support for her.
19. The Applicant approximately six years ago established a furniture manufacturing business in Sydney and presently employs seven people, at one time employed up to 20 persons. He is now 54 years of age and according to a medical report of a Dr Quang Pham (Exhibit A):
“…Mr Zhu has been suffering from frequent episodes of exertional angina since February 2004. He is under the care of Dr Garry Helprin (cardiologist) and myself for his heart disease. He requires regular medications and routine follow up for his chest pain. He is under considerable stress due to his illness and work pressures. He lives by himself in Australia. His heart condition will deteriorate with times(sic). It is vital that Mr Zhu has regular support from the medical profession for his angina…”
20. The Applicant has no relations, apart from his daughter, living in Australia.
21. The Visa Applicant has two brothers and one sister each older than herself, living in China. She has no relatives apart from her husband living in Australia. She only attended primary school for two years and living with her family in a rural area has, until her time in Australia, only ever worked on the land. Since returning to China in January 2003 she has not worked, being supported financially by the Applicant.
22. Sometime in early 1998 the Visa Applicant expressed a desire to visit Australia. With the advice of friends she enlisted the assistance of a person who has been described in evidence as a “Snakehead” in reality a people smuggler. Why she retained the Snakehead and did not seek a visa through diplomatic channels is not apparent on the evidence. She paid money to the Snakehead and on his advice travelled from her hometown to Guangdong and then by boat to Hong Kong. At Guangdong the Snakehead gave her a passport, which whilst having within it her photograph, was in the name of Yong Yue Du with a date of birth 4 May 1958. Both name and date of birth were incorrect.
23. Either whilst at Guangdong or Hong Kong, and more likely the former, although the Visa Applicant says it was just prior to her boarding the flight in Hong Kong, she remarked to the Snakehead about the incorrect particulars in the passport. Reportedly he said it was a mistake but not to worry about it as the passport “will be sufficient to get you to Australia”.
24. The Visa Applicant knowingly used the false passport and wrongly obtained visa to travel to and enter Australia. At the time of so entering Australia she presented a Passenger Entry Card, which contained further falsities stating her intent to remain in Australia as only for two days, her place of residence as New Zealand and her address in Australia as Caringbah. The card also contained her false name. She had no intention of remaining for only two days, did not reside in New Zealand and did not disclose in her evidence awareness of the address at Caringbah.
25. Although not permitted under her visitor’s visa, shortly after her arrival she obtained part time employment and within six weeks having decided she said that she liked the country and wanted to stay longer, consulted a migration agent recommended to her by a “man I met on the train”. She then made a protection visa application under her false name. The application was refused. She appealed to the Refugee Review Tribunal where the refusal decision was affirmed.
26. The Applicant advertised in a local Chinese newspaper when he had vacancies for staff. The Visa Applicant saw such an advertisement, answered it, was accepted, and commenced to work for the Applicant in about April 2004. A relationship developed between them. She told the Applicant of her residency status, her use of a false name in her passport and the result of her first protection visa application, and, with the Applicant approached another migration agent who, she says, advised her to apply a second time for a protection visa using the same false name and passport. The agent was a person known to the Applicant, he having used the agent sometime before when he had applied, without merit himself, for a protection visa. The Visa Applicant did apply for a second protection visa and in support of her application provided a statement which inter alia contained the following:
“…In July 1996, I was introduced to read and learn to practice Falungong by my friends… I have informed and introduced more and more people to participate in Falungong practicing and the formal Falungong Organization in our company was set up in March 1998. Since I was one of the most important and active founders I was elected as the leader soon. Our objective is to cleanse the soul spiritually and to keep healthy physically.
…
For protecting our Falundafa members, I said all the activities were arranged by me and I also tried to explain to them how good is the Falundafa. The PSB said I were too solid to feel regret of leading people to the wrong direction. Therefore, they detained me in the detention centre…
I tried so hard to apply for the refugee protection visa because I know I am a real refugee and once I go back to China I will definitely be sentenced into jail for long period as other key members of our Falungong organization. Also I have lost my job since I came to Australia and I have no future to go back.”
27. The material set forth in the statement was false as were particulars in the application form itself.
28. The second protection visa application was refused, the refusal being affirmed on appeal to the Refugee Review Tribunal. The Visa Applicant continued in her unauthorised employment until she was located by officers of the Respondent in December 2002 together with three other unlawful residents, detained and then caused to leave Australia in January 2003.
29. The Applicant being well aware of the migration status of the Visa Applicant had kept her on in her employment as “the factory needed her I could not do it without her. I asked friends about situation, they said they had similar cases. It was difficult to obtain workers so I just took them in”.
reliance on agents
30. In this matter both the Visa Applicant and her husband, the Applicant have sought to place the blame for their migration misconduct upon the Snakehead in China and the agents that were retained by the Visa Applicant, and by the Visa Applicant and the Applicant, for the purposes respectively of the two protection visa applications.
31. I am satisfied that the Visa Applicant by reason of her paying money to the Snakehead, and not applying through diplomatic channels for a passport and visa was well aware that the documents she obtained would not have been official. She knew it was wrong and an offence in China, let alone Australia, to have a false passport. She knew or ought to have known that particulars on her Passenger Entry Card were false. She knew that the first protection visa application was lodged in order to have her stay in Australia extended and not in order for her to obtain a protection visa. Likewise with the second protection visa application. She in collaboration with the Applicant endeavoured to mislead the Respondent. She knew at the time that her actions were wrong.
32. The Visa Applicant acted with knowledge of the nature and purpose of her applications. The agents gave her false advice, but she intended to mislead the Respondent and availed herself of the false advice for her own ends. She cannot be relieved of her primary responsibility.
33. The first and second protection visa applications are replete with untruths, however some of the information contained in them, such as particulars of the Visa Applicant’s family, are correct. Particulars referable to her education and employment activities are not. It is clear that the Visa Applicant provided information to the agent, some of which was correct and some was not. So far as the second Protection Visa application is concerned she was a willing participant on this occasion in association with the Applicant in an endeavour to mislead the Respondent.
character
34. In accord with the findings of fact above made I am satisfied that the Visa Applicant used the services of a Snakehead, a people smuggler, to obtain a false passport and her visa to enter into Australia having been alerted to this course of action by people in her village. She paid money for services to obtain such false documentation. She was aware of the falsity of the documentation prior to leaving Hong Kong. While knowing the passport was false and that it was wrong to obtain the false documentation, she used the documents to enter Australia, She completed her Passenger Entry Card with false particulars. She used her false documents in Australia, to obtain goods and services, and worked in Australia for lengthy periods of time without permission. She remained in Australia unlawfully for not less than four and a half years. She made two protection visa applications using a false name, and furnishing incorrect particulars.
35. There is no doubt that the absence of truth in the Visa Applicant’s dealings with the Respondent and the serious disregard of Australia’s Immigration Laws were deliberate attempts by her to mislead the Respondent in order to secure entry into Australia, residence in Australia and the earning of money in Australia. Consistent with the authorities earlier referred to her “enduring moral qualities” are such that a finding inevitably must be made that she is not of good character. Likewise the Tribunal cannot be confident that she would in the future be truthful or obey the law. I am satisfied that the Visa Applicant was involved in activities that indicate a disregard for the law both in China and Australia. She made false and misleading statements referrable to the granting to her of a visa, and she made misleading declarations in her protection visa application forms. The participation of the Snakehead and the migration agents in Australia, even be it, they were participants in her misconduct, does not relieve her of the primary responsibility.
36. Accordingly I am satisfied that the Visa Applicant is a person who is not of a good character.
discretionary factors
37. The misconduct of the Visa Applicant detailed earlier in these reasons was very serious. She used the services of the Snakehead and the agents who each provided her with the type of assistance that she wanted in order to achieve her own ends. She used the migration system in aid of her scheme to remain in Australia and in the course of doing so acted contrary to the provisions of the Act. I am satisfied that her conduct was of such a nature as to indicate a likelihood of her repeating the same if the circumstances warrant it. She used her false passport to obtain goods and services in Australia. It was not until she and the Applicant were contemplating marriage that she applied her mind to disclosing her true identity.
38. The Visa Applicant was advised to consult the Snakehead by people in her village in China. She sought advice from migration agents in Australia, the first being recommended to her by an acquittance, the other by the Applicant. Refusal of a visa to the Visa Applicant will send a message to the Chinese community and agents working in that community that an Applicant “can not “ as the Respondent submitted “hide behind an agent” but must assume responsibility for her own acts. This may be of greater significance when it is appreciated that advice so given by the agent was itself knowingly not correct.
39. The circumstances detailed earlier in these reasons are such as to satisfy me that the Australian community properly informed of the relevant circumstances would expect the Visa Applicant not be allowed to enter the country. The purpose of refusing or cancelling a visa is to protect the safety and welfare of the Australian community. It is a decision made on behalf of that community as a whole when considering who should and should not be allowed to enter or remain in the community. If a visa be granted to the Visa Applicant, it would be tantamount to rewarding her for her misconduct and give a false impression to others who might contemplate doing the same. As it was stated in Re Ayaad and MIMIA [2000] AATA 935 at paragraph 40:
“…These practices are not only contrary to migration legislation but strike at a very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and their remain. It is not for a non citizen or illegal resident to make the decision. Refusing an application that might otherwise have been accepted where there has been falsity and deception can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations is the one more likely to have an application favourably considered.”
40. Conduct similar to that of the Visa Applicant is not acceptable to the Australian community and a non citizen can expect to be refused entry if he or she engages in similar conduct.
41. The Applicant has not had any association with the visa Applicant’s two daughters now 18 and 20 years of age who live in China. The Visa Applicant has not had any meaningful association with the Applicant’s five year old daughter living in Australia saying in her evidence “I did not care, I did not want to know about his past life”. She has had no contact with the Applicant’s son living in China. There is not any evidence of an adverse effect on any of the children of a visa being refused to the Visa Applicant. The best interests of the children will not be affected if a visa not be granted.
42. Hardship will be caused to the Applicant if a visa is not granted to the Visa Applicant. However as submitted on behalf of the Respondent the Applicant “must have been aware there was a risk the Visa Applicant would be refused a visa and/or refused further entry to or stay in Australia prior to entering into the marriage”. The Tribunal agrees with the submission. The Applicant with the Visa Applicant was a party to the second protection visa application. The Applicant was aware of the Visa Applicant using her false name and providing false particulars in her protection visa application.
43. There is evidence before the Tribunal of the health problems earlier detailed in these reasons presently being experienced by the Applicant. The Applicant in his evidence has said that he wishes the Visa Applicant to be in Australia in order, inter alia, “that he can be by my side to take care of me”. He has thought of returning to China to live there with his wife if her entry into Australia is refused but now says that he has “given up the idea of going back” because of the fact that Medicare and health insurance is not available to him in that country and that he would not receive “the same medical treatment as here”. There is not any evidence before the Tribunal other than that appropriate medical assistance is available in Shanghai and Hong Kong.
44. As earlier indicated the Applicant and the Visa Applicant are each not able to minimise the misconduct by reason of their having been “misled by agents”. Nor do I accept as was submitted by Mr Zhu that “the wrong doings were by accident”. The Visa Applicant engaged in the various strategies adopted by her, aware that her conduct was wrong. She may not have appreciated all of the details set forth in her applications, but she was aware that the applications were being made on the basis of false representations.
decision
45. The Tribunal is satisfied that the primary considerations of the need to protect the Australian community appreciation of the expectations of the Australian community and the deterrence to others together with the consideration of the best interest of the children outweigh the hardship that will be experienced by the Applicant and the Visa Applicant in the event of a visa being refused. The discretion available pursuant to section 501 of the Act should not be exercised in favour of the Visa Applicant.
46. For the reasons here in before set forth the decision under review is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis, Q.C., Deputy President
Signed: Neil Glaser
Associate
Dates of Hearing 29 July 2004, 30 September 2004,
1 October 2004.
Date of Decision 25 October 2004Representative for the Applicant Bao Wei Zhu (Self-Represented)
Advocate for the Respondent Ishan Muthalib
Blake Dawson Waldron
1
5
0