Zou and Minister for Immigration and Citizenship
[2008] AATA 538
•27 June 2008
ADMINISTRATIVE APPEALS TRIBUNAL
No: 2006/2538
General Administrative Division
Re: Xiu Lan Zou
Applicant
And: Minister for Immigration & Citizenship
Respondent
DIRECTION
TRIBUNAL: Ms G Ettinger, Senior Member
DATE: 4 July 2008
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by:
1. Deleting the last two lines on page 24; and
2. Replace with:
Counsel for the Applicant Mr B Zipser
Solicitor for the Respondent Mr G Johnson, DLA Phillips Fox
.................[sgd]................
Ms G Ettinger
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 538
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/2538
GENERAL ADMINISTRATIVE DIVISION ) Re ZOU XIU LAN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date27 June 2008
PlaceSydney
Decision The decision under review is affirmed. .....................[sgd].......................
Ms G Ettinger Senior Member
CATCHWORDS
IMMIGRATION – appeal by Review Applicant against refusal of Class UF (Partner - Provisional)and (Class BC) Partner (Migrant) visa for her husband, the Visa Applicant – Visa Applicant arrived in Australia on Business (Short Stay) subclass 456 visa in 1997 – Visa Applicant married to Review Applicant –– inaccurate information given in protection visa application and to Refugee Review Tribunal - applications lodged via migration agent - visa refused on the basis that Visa Applicant is not of good character – discretion not exercised in Applicant’s favour - decision under review affirmed.
Migration Act 1958 s 501
Ministerial Direction 21
Shi v Migration Agents Registration Authority (2007) 240 ALR 23
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Issa v Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421
Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
McKay and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 861
REASONS FOR DECISION
27 June 2008 Ms G Ettinger – Senior Member BACKGROUND
1. The Applicant Ms Zou Xiu Lan is of Chinese background, and arrived in Australia in 1989. She was married twice and divorced twice before she met her present husband, the Visa Applicant, Mr Yao Xue Feng. Ms Zou, who has been an Australian citizen since 1996, told me that she met the Visa Applicant at a party in 1998, that they started living together in February 2002, and that they married in Shanghai in September 2005.
2. Mr Yao arrived in Australia on 2 January 1997 on a Business (Short Stay) subclass 456 visa. He departed again on 16 March 1997, and re-entered a number of times. After entering Australia on 25 April 1999, he overstayed. He did not apply for a visa until October 2000.
3. Mr Yao remained in Australia, and had two periods, 26 July 1999 to 30 October 2000, and 14 June 2001 to 14 December 2001 during which he was an unlawful non-citizen because his business and bridging visas respectively, had expired. He was apprehended by compliance officers and detained at Villawood Detention Centre from 24 October 2002 until he was removed from Australia to China on 10 November 2002.
4. Once back in China, he applied for a Combined Partner (Provisional) Class UF) and Partner (Migrant Class BC) visa on the basis of his marriage to Ms Zou, the Review Applicant, who is an Australian citizen. Mr Yao was notified of the refusal of his application on 29 November 2006.
5. Ms Zou appealed for review of the decision to this Tribunal on 13 December 2006.
6. I have considered the evidence and submissions in this case, and the relevant legislation, Ministerial Direction 21, (the Direction), and the case law. I am satisfied that Mr Yao’s past conduct in remaining in Australia unlawfully for two periods, and the false information he supplied in connection with visa applications contribute to my finding that Mr Yao does not pass the character test in section 501 of the Migration Act 1958 (the Act). Having considered the legislation and the Direction, I do not exercise the discretion to allow Mr Yao to be issued the visas for which he has applied.
7. I am mindful that although many of the issues raised during the hearing are in dispute, there was no disagreement, and I accept that Ms Zou and Mr Yao are legally married, and that they have a genuine relationship.
8. I have affirmed the decision under review. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
9. The issues I have to decide:
· Whether Mr Yao satisfies the character test pursuant to section 501(6)(c)(ii) of the Act having regard to his past and present general conduct;
· If I am satisfied that Mr Yao does not pass the character test, whether I should exercise the discretion in section 501(1) of the Act to permit the issue to Mr Yao of the visa for which he has applied.
RELEVANT LEGISLATION
10. Section 501 of the Act provides as follows:
"501(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.
(2)The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
….
501 (6)For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…
Otherwise the person passes the character test.”
11. If Mr Yao fails the character test pursuant to section 501 of the Act, then by virtue of section 499(2A), in considering this issue, I must take into account, as a guide to making the decision, Ministerial Direction No. 21 (the Direction), being a Direction made by the Minister for Immigration and Citizenship pursuant to section 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under section 501.
WHETHER MR YAO SATISFIES THE CHARACTER TEST PURSUANT TO SECTION 501 OF THE ACT BECAUSE HE IS A PERSON OF GOOD CHARACTER, HAVING REGARD TO HIS PAST AND PRESENT GENERAL CONDUCT
12. The Minister, and this Tribunal standing in his shoes, may, pursuant to section 501(1) of the Act, refuse to grant a visa to a person if the person does not satisfy the Minister, and in this case, the Tribunal, that the person passes the character test.
13. For the purposes of section 501(6) of the Act, there are various indicia which may be considered in regard to whether a person passes the character test. The Minister, and accordingly, the Tribunal will have regard to the person's past and present criminal conduct. I was satisfied that the issue of criminal conduct does not apply in this case, because there is no implication that Mr Yao engaged in any criminal conduct.
14. I am mindful that the Respondent raised contravention of sections 234 and 235 of the Act in his Statement of Facts and Contentions, but did not press that in submissions. I not feel it is necessary to deal further with those sections of the Act in these Reasons for Decision.
15. I must however take into account Mr Yao’s past and present general conduct in order to assess whether he passes the character test. If he does not, there is still a discretion to be considered to allow him the grant of the requested visa after taking into account primary and other considerations.
16. I have noted that the dates documenting Mr Yao’s entry into and exit from Australia are not in dispute. I am satisfied that he first entered Australia on 2 January 1997 and departed 16 March 1997 on the basis of a Business (Short Stay) subclass 456 visa. He travelled to Australia again from China in 1998 and 1999 on the same basis. Mr Yao last arrived in Australia on the subclass 456 visa on 25 April 1999, and unlike on the other occasions of his visits, failed to depart within the period of his authorised stay. He has two periods of unlawful stay in Australia, 26 July 1999 to 30 October 2000, and 14 June 2001 to 14 December 2001.
17. Mr Yao was removed from Australia on 10 November 2002.
18. At the hearing Mr Yao gave evidence by telephone link from China with the assistance in Sydney of Ms Zhang Jun, an interpreter in the Mandarin language. Mr Yao said in his statement, (Exhibit A2), that he is a manager in a lunch box company in Shanghai. He said that he came to Australia to do business negotiations for a company for which he then worked, and knew that the visa provided for a three month visit only, on each occasion.
19. Ms Zou, his wife, who is an Australian citizen, and who runs a cleaning business in Sydney with her brother, gave oral evidence in person at the hearing.
20. Although many of the issues raised during the hearing are in dispute, there was no disagreement, and I accept that Ms Zou and Mr Yao are married, and that they have a genuine relationship. They indicated that they had been living together since early 2002. There are two different versions of when the couple met, Ms Zou telling me that it was at a Chinese New Year party in 1998, and Mr Yao recalling their meeting at a Chinese spring festival in the “winter of 1997”. I do not draw any inferences with regard to the difference in recall of those dates.
21. As to Mr Yao’s involvement in the practice of Falung Gong; he said that he met practitioners in Sydney, and considered the books and other material they produce. He stated that he then commenced practising Falung Gong in public at least once a week in Sydney, in approximately May or June 1999. He stated that after the expiry of his visa in July 1999, members of the Falung Gong told him that if he went back to China he would be jailed because he was a Falung Gong practitioner. In his statement Mr Yao mentioned the names of two Falung Gong practitioners in Sydney, one, a leader of his group. However, when he gave his oral evidence, Mr Yao could not name any member of the group.
22. Mr Yao told me that he did not discuss his Falung Gong activities which included distributing materials in public, with Ms Zou at the time. He was asked during the hearing what being Falung Gong meant, and appeared not to know much about the movement. He was only able to describe the aims and purpose of the Falung Gong as purifying people’s souls and removing bad karma.
23. Mr Yao told me that although he knew his visa had expired in July 1999, and felt uncomfortable with his status as an unlawful non-citizen, he did not approach anyone in order to regularise his immigration status until September or October 2000. He said that at that time he approached an agent called Thomas in Chinatown, whom he consulted in connection with advice to lodge a protection visa application. He said that Thomas asked him if he had any photographs of himself involved in Falung Gong activities, advising that if he did not, the application could still proceed. Mr Yao said that Thomas asked him to sign a document, pay money to him, and advised he would do the rest. Mr Yao said that he trusted Thomas, and noted that although his personal details were on the form he signed, the rest was blank. The basis for the protection visa application was religious persecution, and after it was refused, Thomas advised an appeal to a court, (the RRT). Mr Yao told me that he did not find out until after the hearing which rejected his application that certain so-called facts presented to the Tribunal were inaccurate. He said that he was advised by Thomas he could appeal the decision. He said that once again, trusting Thomas, he signed a document. Mr Yao said that all the documents were in English, and were not translated for him. Mr Yao said Thomas had warned him not to attend the hearing because if the application was not successful, he could be arrested there and then. Mr Yao gave evidence that he had not inquired about the outcome of the RRT hearing, and that Thomas had not informed him of it.
24. Mr Yao told me that later, once he found out the result, Thomas then told him he could join a class action which had a high probability of success. Mr Yao said that he did not intend to break the law, and his reason for joining the class action was because he wanted to stay in Australia. He received a visa while the application was being processed. I find he joined the class action without first inquiring what it entailed, and simply relying on his migration agent. He withdrew from the class action before he was removed from Australia.
25. Mr Yao also told me that he was arrested and detained at Villawood Detention Centre while learning baking in a cake shop. He said that he was not employed in the bakery, but because of the activities which commenced in the early hours of the morning, he slept upstairs, rent free, in the shop on weekdays, and went home to Ms Zou on weekends. He said that he did not earn money at the shop, and was supported by Ms Zou. Ms Zou corroborated that evidence.
26. Mr Yao was returned to China on 10 November 2002, and told me that he has repaid his debt covering that travel to the Australian Government.
27. Mr Yao’s evidence was that he practises Falung Gong privately in China. He did not appear to know much about the movement.
28. Ms Zou’s evidence was that she knew Mr Yao had arrived in Australia on a business visa, and that she knew he had applied for a protection visa, but that she did not know the details of that. Neither did she know much about his Falung Gong activities she said, because she was not interested in the movement. Ms Zou told me that the first time she had heard about Mr Yao’s Falung Gong activities was on the day she accompanied him to Chinatown to see Thomas in late 2000 or early 2001. Ms Zou was unable to recall, she said, details of what Mr Yao signed, or whether he signed documents when he consulted Thomas. She said that she did not know what visa Mr Yao had applied for. This was in contradiction to the content of paragraph 3 of her statement (Exhibit A1), where she indicated that she accompanied Mr Yao to see a migration agent who “helped him with his application for a refugee visa.” I noted that Ms Zou distanced herself from Mr Yao in relation to his visa application and his Falung Gong activities.
29. Ms Zou said in her oral evidence that Mr Yao told her in 2002 he was not permitted to work, and that she and her brother allowed him to assist with house work and help at their shop, but did not pay him. However in Mr Yao’s statement at paragraph 15, he stated that:
“In this period (which appears to be between 2000 when the protection visa application was lodged), and up to November 2002, I remained in Australia. I was aware that I did not have permission to work. But I must earn some money to live. From time to time, a friend introduced me to temporary jobs, such as washing dishes in a restaurant and working in a meat shop.”
30. Ms Zou told me that Mr Yao had been very helpful to her mother in Shanghai where her son also lives.
31. In relation to past and present conduct, I can into account Mr Zipser’s submissions that Mr Yao has now repaid his debt to the Australian Government, and that he assists Ms Zou’s mother and her son in China. I note in passing that without repaying the debt to the Commonwealth Mr Yao could not have applied for the spouse visa.
32. In applying the legislation, I must also take into account the Ministerial Direction 21. Paragraph 1.9 of the Direction states relevantly:
"In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii) of the Act, 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:
...
(b) whether the non-citizen has, in connection with any application for the grant of any kind of Government benefit, provided a bogus document or made a false or misleading statement.
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non- citizen’s character or conduct or both;
(d) whether the non-citizen has been removed /deported from Australia or removed/deported from another country; or
…”
33. I am mindful that there are many decided cases in which good character has been considered. I have taken into account the following in particular, noting that in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon (as he then was), stated that:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications … Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
….
Good character cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning. The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation."
34. In Irvingv Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J stated:
"Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ 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 a fact while the latter is a review of subjective public opinion ...
...
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry."
35. In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, the Full Court said in relation to good character in section 501 of the Act :
"The concept of good character is section 501 is not concerned with whether an applicant meets the highest standards of integrity but with a less exacting standard than that. It is concerned with whether the applicant's character in the sense of [his] enduring moral qualities is so deficient as to show it is for the public good to [cancel [his] visa]."
36. I am mindful there must be an honesty and integrity amongst visa applicants on which the authorities can rely so that they are treated fairly, and that their claims are assessed by the same standards.
knowingly overstaying
37. Mr Yao’s evidence was he knew his visa only permitted to remain in Australia for three months on each visit. He knowingly overstayed his visas on two occasions, and had two periods of unlawful stay in Australia, being 26 July 1999 to 30 October 2000, and 14 June 2001 to 14 December 2001. Mr Yao’s evidence was that his discomfort with being an unlawful non-citizen led him to seek the assistance of Thomas in late 2000. Unfortunately Mr Yao, who knew on both occasions that he had overstayed his visa, has knowingly breached the standards and the requirements of the legislation.
false information
38. I find further that he gave false information on application forms for the Protection Visa and to the RRT. The Visa Applicant raised religious persecution, alleging in the application forms for the Protection Visa and application to the RRT which were signed by him, that he was a Falung Gong leader. He admitted both in his written statement and in his oral evidence that this was incorrect information. Mr Yao said that he trusted Thomas, and had signed blank application forms, that is before Thomas entered the information onto them. He said he was not told what information, which was in English, was included on the form.
39. I noted however the Applicant’s declaration accompanying his application for a Protection Visa at T5/69, and am mindful that notwithstanding Mr Yao’s evidence that he did not know what was in the application, an interpreter’s declaration at T5/70 indicated she had interpreted the contents of the application for Mr Yao. Mr Yao’s signature was also on that document and in several other places throughout the T-documents including at pages 88, 82 and 90.
40. In making submissions characterising the gravity of Mr Yao’s conduct, Mr Zipser submitted that certain breaches of the law such as certain parking or driving offences did not necessarily mean a person was not of good character. I note his submissions, but am unable to accept that the false information Mr Yao gave to Australian authorities on his application forms or his overstaying of the visa are on foot with parking or driving offences.
no remorse
41. Mr Yao did not express any remorse for having provided false information to the Australian authorities, and at all times blamed his migration agent. Mr Yao also joined in a class action for the sole purpose of extending his stay in Australia, and was unable to explain anything about that action to me. It seems that he joined without so much as inquiring the purpose of the class action. I note that Mr Yao eventually withdrew from the class action, and departed Australia on 10 November 2002 after he had been detained at Villawood from 24 October 2002.
admissions
42. Mr Zipser submitted that Mr Yao should be found to be of good character because he had admitted matters adverse to him such as telling the Tribunal that the information on his application forms was incorrect. Mr Johnson submitted however, that the admissions Mr Yao made related to matters where the Visa Applicant could not properly sustain any other point of view. I consider the Respondent’s view in this is the more likely.
43. I was mindful of a finding of Deputy President Purvis in the matter of Issa v Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421 where the Deputy President stated as follows at [51]:
“… The applicant is not relieved of his primary responsibilities by contending that it was his agent who made the allegations and not he himself. If he did sign the application form prior to the information being set forth in it and should have ensured that the material was made available to him before it was presented to the Department. The Visa Applicant 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.”
44. I similarly find that Mr Yao cannot disclaim his primary responsibility for what was in the documents lodged by his migration agent.
falung gong
45. Mr Johnson submitted that Mr Yao knew little about the Falung Gong philosophy and was unable to name persons involved, and that he was therefore not a serious practitioner. Mr Zipser on the other hand submitted that there are many people in our society who belong to a religion or church and only have limited knowledge of it. I note Mr Yao’s evidence that he practises in private in China, and whilst Ms Zou said she knew nothing of his Falung Gong activities, I don’t have any evidence to the contrary. I make no comment upon whether he should have known more or less about the movement as everyone can worship in his or her own way. I am satisfied however that the position Mr Yao presented in support of his Protection Visa and appeal to the RRT that he was a Falung Gong leader was false, and note he admitted that in his evidence. There was no evidence before me to suggest he was being pursued or persecuted for his beliefs since he returned to China.
work
46. Another point of contention between the parties, and one that goes to Mr Yao’s good character is whether he was working in Australia. Ms Zou said in her oral evidence that Mr Yao told her in 2002 he was not permitted to work, and that she and her brother allowed him to assist with house work and help at their shop, but did not pay him. However in Mr Yao’s statement at paragraph 15, he stated that:
“In this period (which appears to be between 2000 when the protection visa application was lodged), and up to November 2002, I remained in Australia. I was aware that I did not have permission to work. But I must earn some money to live. From time to time, a friend introduced me to temporary jobs, such as washing dishes in a restaurant and working in a meat shop.”
47. Mr Yao also told me that he was arrested and detained at Villawood Detention Centre when apprehended learning baking in a cake shop. He said that he was not employed there, but because of the activities, which commenced in the early hours of the morning, he slept upstairs, rent free, in the shop on weekdays and went home to Ms Zou on weekends. He said that he did not earn money at the shop and was supported by Ms Zou. Ms Zou corroborated that evidence.
48. The Respondent relied on T22 and T23, documents related to surveillance, (Mr Yao had been seen unloading a truck of supplies for the cake shop), cancellation of Mr Yao’s Bridging Visa, and his arrest by Departmental officers on 24 October 2002. The authorities had discovered Mr Yao “working” in contravention of his visa, at the bakery where he alleges he was not working, but learning to bake cakes. The reports suggest Mr Yao had been at the bakery either a month or six months. Mr Yao’s evidence about the time was equivocal, but he asserted he was not paid, and because of a 2 am start, was living upstairs in the shop, rent-free, during the working week.
49. There are a number of issues involved. Mr Zipser made strong representations that the hearsay reports of the relevant authorities not be taken into account as the officers who made them were not called to give evidence. I find that the reports may be characterised as business records, the strict rules of evidence do not apply in this Tribunal, and I could not be satisfied that there were serious inaccuracies as far as matters relevant to my decision making, in the reports.
50. I am satisfied that Mr Yao was in the bakery when he was apprehended, and that he was recorded as having agreed he had been there six months. I am satisfied that he had been there either a month or six months, or some other similar length of time (T23/145). I am mindful that the officers who made the report were not called to give evidence.
51. I considered the definition of work from the Migration Regulations 1994, where work is defined as “an activity that, in Australia, normally attracts remuneration.” I was satisfied that even if Mr Yao was working to learn cake baking he was offered the benefit of a rent free room, and that that represented certain remuneration for his work. He has also in his statement referred to paid work, indicating that he was working in breach of his visa conditions. He may also have done unpaid work for his wife and her brother. I am satisfied that what is more serious, is the false information he provided to Australia in connection with his Protection Visa and to the RRT.
conclusions
52. I am mindful that:
· Mr Yao did not engage in any criminal conduct, and that his conduct in overstaying his visas may not be extremely reprehensible.
· However, he has two periods of unlawful stay in Australia, being 26 July 1999 to 30 October 2000, and 14 June 2001 to 14 December 2001. I accept he was aware his visa was for three months only on any occasion when he was in Australia. He indicated no contrition with regard to his activities of overstaying his visa.
· He has shown no contrition with regard to the false information he relied upon in the Protection Visa application and to the RRT, and has blamed his migration agent throughout. I am satisfied that Mr Yao admitted his involvement with the Falung Gong was not as he had represented it in his Protection Visa application and to the RRT when giving his evidence at this Tribunal, whilst noting the Respondent’s submission that given the facts, Mr Yao had no alternative but to accept he had misrepresented his case for a Protection Visa and to the RRT.
· It is more likely than not that Mr Yao has engaged in unpaid work as well as paid work in Australia in contravention of his visa conditions, in particular in accepting rent free accommodation in the bakery, and doing the casual work to which he admitted in his statement.
· As to present good conduct; I note from the evidence that Mr Yao has been looking after Ms Zou’s mother and assisting Ms Zou’s son in China. He has also repaid the debt to the Commonwealth.
53. I am satisfied from the evidence as noted above, and a consideration of the case law, to conclude that Mr Yao does not pass the character test pursuant to section 501(6)(c)(ii) of the Act because he is not a person of good character, having regard to his past and present general conduct, in particular in overstaying his visa on two occasions, and making false representations in his Protection Visa application and to the RRT. My next task is then to consider the discretion to set aside the decision of the Respondent.
WHETHER I SHOULD EXERCISE THE DISCRETION IN SECTION 501 OF THE ACT IN REGARD TO MR YAO
54. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in clause 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
55. The three primary considerations in Direction No. 21 follow:
Clause 2.3 provides follows:-
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
56. Clause 2.3 should be considered in relation to clause 2.5 which reads as follows:
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
protection of the australian community
Seriousness and Nature of the Conduct
57. In considering the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction), paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. They involve drugs, sexual assault, murder and other violent crimes which are not relevant to Mr Yao’s case. They also at paragraph 2.6(c) deal with serious crimes against the Migration Act 1958, including relevantly, presenting false documents or making a false or misleading statement in connection with entry or stay in Australia. I am mindful that in connection with the latter, (2.6(c)), there need be no intention shown, and that it is a strict liability clause.
58. I am satisfied in regard to Clause 2.6(c), that Mr Yao applied for a Protection Visa and to the RRT with false information about his Falung Gong activities. He has denied knowing the content of the applications at the time, and he has expressed no remorse for the fact they contained what he now admits was false information in relation to his Falung Gong activities. Mr Yao continues to blame his migration agent. He has breached Clause 2.6(c) of the Direction regardless of his intention.
59. In coming to a decision I was mindful of what Deputy President McMahon pointed out regarding the observance of truth in immigration matters in Lachmaiya (supra):
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
60. I am mindful that paragraph 2.6(c) of the Direction states that it is the Government's view that, "presenting false or forged documents or making a false or misleading statement in connection with entry and stay in Australia" is very serious. Given his evidence before the Tribunal, I can be satisfied that Mr Yao presented false information in connection with his religious beliefs and persecution in his application for a Protection Visa, and to the Refugee Review Tribunal
61. I am satisfied in assessing the seriousness and nature of Mr Yao’s conduct after consideration of his evidence and the information he provided, that he demonstrated a disregard for Australia’s immigration laws.
Likelihood of Repetition of the Conduct and Risk of Recidivism
62. The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct is relevant to assessing the likelihood of an offence and the risk of recidivism.
63. Mr Johnson submitted that in regard to recidivism, migration fraud should be viewed differently from criminal activity, and that given there has been disregard of the laws of Australia, it is difficult to hold that Mr Yao would not reoffend, say, in connection with social security or health issues. He also submitted Mr Yao had not expressed any contrition, apologised or admitted his actions were in contravention of the law.
64. In considering the risk of Mr Yao re-offending if he is granted entry to Australia, I have noted what the Tribunal stated in Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, that:
“In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.”
65. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, Deputy President Purvis stated that:
“These practices are not only contrary to migration legislation but strike at the 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 there 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.”
66. I accepted that Mr Yao had presented untruths to the Australian Government about his involvement and position in the Falung Gong movement in connection with his visa application and the application to the RRT, and that this conduct was an indicator for re-offending.
67. I am mindful that Mr Yao expressed no remorse while giving his evidence, and noted that he continued to blame his migration agent’s advice with regard to the falsities supporting his Protection Visa application. I note that Mr Yao was an unlawful non-citizen for two periods, 26 July 1999 to 30 October 2000 and 14 June 2001 to 14 December 2001.
68. Having considered all the circumstances, I am not satisfied that Mr Yao is a person who would not lapse into that type of behaviour if the occasion should again arise.
General Deterrence
69. The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). In the present matter, the affirmation of the decision not to grant the visa to Mr Yao presumably would become known to friends and acquaintances, and that may provide some deterrence to other persons. Although in this matter the general deterrent effect is not significant, and there is no suggestion that the applicant was involved in any criminal activities, I consider that on balance, this consideration points in favour of affirming the Respondent’s decision.
70. To grant the visa to Mr Yao could be seen to be condoning the conduct in which he engaged, albeit not criminal, and could indicate to other applicants and migration agents that such conduct is excusable, and may lead to the grant of a visa.
expectations of the australian community
71. I am mindful of a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. I respectfully agree with Deputy President McMahon when he said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 that there would be a general expectation in the community that the Act would be administered fairly and humanely. This second primary consideration also appears from its terms to require the decision-maker to formulate the expectations of the Australian community not only objectively, but also with reference to the particular person involved in the relevant determination.
72. I have noted that Mr Yao and Ms Zou moved in together in February 2002, that they married in 2005, and that they are in a genuine relationship. I accept that they have been separated since the latter half of 2002, and that they miss each other. Ms Zou, who is Chinese, has visited Mr Yao several times and her son who lives in China. She would be able to move to China to live and work if she so wished. The evidence before me indicates neither Mr Yao nor Ms Zou has children in Australia, and Mr Yao has (apart from his wife), no other relatives here. I am mindful that Ms Zou’s son is in China, but that she is in a cleaning business with her brother in Sydney, and has that connection. In passing, I note that Mr Yao has not relied upon any referees.
73. I am mindful that while the Australian community would expect that the Act would be administered fairly and humanely, I support the approach taken in McKay and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 861 in which the Tribunal stated that granting visas to "persons who systematically cheated the immigration system over a long period" would be an affront to the concept of fairness. The Tribunal in that case stated:
"The success of Australia’s migration program, and the Australian people’s acceptance of it, rests in large part on the Act being administered in an organised, controlled and considered manner. The people’s legitimate expectations would be defeated if serious wrongdoing were rewarded in that way. Further, a humane approach to administering the Act requires considering the application at hand, not only in isolation, but also in the context of other applicants with similar needs and desires. Nor does it entail overlooking the important distinction between those who comply with the Commonwealth immigration laws and those who do not."
74. I accept that the Australian community expects that non-citizens in Australia will respect and abide by Australian laws (paragraph 2.12 of the Direction). I am mindful that there would be a general expectation in the community that the Act would be administered fairly and humanely. I am also satisfied that Mr Yao breached Australian laws and demonstrated disrespect for those laws governing us. I therefore find, given Mr Yao's past general conduct, that the Australian community would expect that the decision refusing his visa be affirmed.
best interests of a child or children
75. The best interests of any children under the age of 18 are serious and important considerations. Mr Yao told me he has no children.
76. Ms Zou’s son is an Australian citizen, and an adult, and lives in China with his own family. He is able to decide for himself where he wishes to live. Ms Zou has visited Mr Yao and her son in China a number of times and is free to travel or live there as she chooses.
77. I am satisfied that the best interests of the child are not relevant considerations in this case.
other considerations
78. There are other considerations included in paragraph 2.17 of Direction No. 21 relevant to the present matter. Paragraph 2.17 reads as follows:
“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 …”
79. This preface is then followed by a list of some 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
80. I have therefore taken into account the particular situation in which Mr Yao and Ms Zou find themselves. They are legally married, and have lived apart since November 2002 when Mr Yao was returned to China. Ms Zou’s evidence was that she has visited him in China several times. . I accept that the couple suffer emotional hardship due to the separation. However I am satisfied that Ms Zou was fully aware of the Visa Applicant’s situation in regard to his visa when she married him. Ms Zou who is originally from China, can visit him and her son who is there, at any time, and is unlikely to face cultural or language difficulties. I am satisfied that Ms Zou, finances permitting, is free to travel as she chooses or indeed to choose to live in China.
81. Mr Yao has no family ties in Australia. His family is in China.
82. In this case I am satisfied to prefer the Minister’s submission that any hardship is outweighed by the primary considerations which favour visa refusal.
83. I am mindful that no claims have been made on behalf of Mr Yao in relation to Australia owing international obligations to him. Any persecution due to religious beliefs was rejected by the Refugee Review Tribunal, and in any case, Mr Yao appears to have been able to return to China freely, and reside there. I note from his evidence that he practises Falung Gong in private.
84. I was satisfied that there are no other relevant considerations which arise out of paragraph 2.17(a).
character evidence
85. Mr Yao did not provide any character references in relation to his appeal.
CONCLUSION
86. I have taken into account all of the evidence before me, and considered the legislation, Direction 21, and the case law. After having had due regard to the importance placed by the Government on the three primary considerations referred to above, but also having adopted a balancing process which takes into account all relevant considerations, as required by paragraph 2.2 of the Direction, I have decided that it is appropriate in the present matter that the discretion under s 501(2) of the Act should be not be exercised in the Applicant’s favour, and accordingly the visa should not be granted. The decision under review is accordingly affirmed.
DECISION
87. The Tribunal affirms the decision under review.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger
Signed: [sgd]
AssociateDates of Hearing 23 & 24 April 2008
Date of Decision 27 June 2008
The Applicant Mr A Zipser, Chancellor & Zipser
Solicitor for the Respondent Mr Johnson, Clayton Utz Lawyers
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