Minister for Immigration and Multicultural and Indigenous Affairs

IMMIGRATION - spouse visa - subclass 309 spouse (provisional) visa - character test - whether the Visa Applicant passes the character test - examination of his criminal record - substantial criminal record - held that the Visa Applicant fails the character test by reason of his past criminal record - discretion that the Tribunal may exercise where the Visa Applicant fails the character test - necessity to balance the primary considerations with hardship to the Applicant - held decision of the Respondent affirmed.

Migration Act 1958 ss 499, 499(1)(2)(2A), 501(1), 501(6)(a), 501(7)

Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575

Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583

1. This is an application by Mao Jing Bo ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 11 June 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Qu Rong Zhuang ("the Visa Applicant").

2. At the hearing, the Applicant was represented by Jeffrey Zhou, Migration Agent, of Ausway Migration Consultants Pty Ltd, and the Respondent was represented by Andrew Grimm, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"). Oral evidence was given by the Applicant in person and by the Visa Applicant by telephone.

3. The Applicant, Mao Jing Bo, was born in Shanghai in the People's Republic of China ("China") on 29 October 1958 and is aged 44. On 13 January 1981, Ms Mao married Zhou Jie Hau. There was one child born of this relationship, a daughter, Yang Wei Qi, who was born on 18 November 1982. On 14 June 1991, Ms Mao came to Australia with her daughter, sponsored by Zhou Jie Hau. Their marriage was subsequently dissolved by divorce on 12 April 1996. On 5 May 1997, Ms Mao became a citizen of Australia. Her daughter, Yang Wei Qi resides with her.

4. The Visa Applicant, Qu Rong Zhuang, was born in Shanghai on 8 March 1962 and is aged 40. He is a Chinese citizen and resides in Shanghai. On 23 March 1991, Mr Qu was convicted of the crime of fraud and sentenced to a fixed term of imprisonment of four and a half years (T p140).

5. In April 1996, Ms Mao met Mr Qu's mother in Sydney while Mr Qu's mother was on holiday. Mrs Qu told Ms Mao that she was looking for a wife for her son. Shortly thereafter, Ms Mao and Mr Qu began to communicate by letter and telephone. Towards the end of July 1996, Mr Qu proposed to Ms Mao by telephone (T p105). She said she would not accept his proposal until after they had met. On 5 October 1996, Ms Mao went to Shanghai and met Mr Qu for the first time. Around the middle of October 1996, Ms Mao agreed to marry Mr Qu and, on 4 November 1996, they were married in Shanghai..

6. On 31 December 1996, Mr Qu lodged an application for a subclass 100 spouse visa at the Australian Consulate-General in Shanghai (T2). On 17 July 1997, further information was requested by the Consulate-General in relation to Mr Qu's relationship with Ms Mao (T8). On 19 September 1997, Mr Qu was interviewed by a Migration Officer at the Consulate-General office in Shanghai (T11). Mr Qu was interviewed again on 11 June 1999 (T22) and 28 August 1999 (T31). At the interview on 28 August 1999, Mr Qu admitted that he had provided false documents and a false declaration as to his past criminal record.

7. On 30 January 2001, a delegate of the Respondent advised Mr Qu of his intention to refuse Mr Qu's visa application, and Mr Qu was invited to comment on this decision (T34). He did so by letter dated 24 February 2001. On 18 October 2001, Mr Qu was again notified of the intention to refuse his visa application (T39). On 11 June 2002, a delegate of the Minister decided to refuse the grant of a visa to Mr Qu on the ground that he is not of good character because of his past criminal conviction. On 26 July 2002, Ms Mao lodged an application for a review of this decision by the Tribunal.

8. Under s 501(1) of the Migration Act 1958 ("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 are met. The relevant ground in the current matter is paragraph (a), as follows:

(a) the person has a substantial criminal record (as defined by subsection (7)); ...

"Substantial criminal record" is defined in s 501(7) to include a person who "has been sentenced to a term of imprisonment of 12 months or more".

9. 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] FCA 1238; (1999) 90 FCR 583. However, s 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"..

10. 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 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, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

11. Mr Qu does not pass the character test because of his "substantial criminal record". The issue, therefore, is whether the Tribunal should exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa.

12. Mr Qu acknowledged that he was convicted and sentenced to four and a half years imprisonment. He explained that his friend, Mr Suen, who was an old school mate and friend of many years, owed him RMB 2,200 yuan. Mr Suen told Mr Qu that he could not repay him but he would be able to do so if Mr Qu assisted him with some foreign exchange business. Mr Suen did not explain how he was going to obtain a profit from the transactions. Mr Qu's only interest was to recover the money which he was owed. He had other employment at that time. Mr Suen asked Mr Qu to watch in the street for him and help attract customers for foreign exchange transactions. Mr Qu assisted Mr Suen on 11 occasions and then, when Mr Suen had repaid the money he owed, Mr Qu took no further part. Mr Qu said that in China, dealing in foreign currencies is legal although cheating is illegal. At the time, he did not know that his friend was cheating customers and that the transactions were fraudulent, and he only learned this when his friend was arrested in August 1990. Mr Qu was arrested on 24 October 1990.

13. Mr Qu said the court that sentenced him treated him too harshly. The only co-accused that he knew was Mr Suen. He did not know the others. Mr Qu told the truth to the court but, notwithstanding this, they gave him a heavy sentence. Mr Qu acknowledged that he did not disclose his criminal record in his migration application. He discussed this with his wife and she went to see a Migration Agent in Dixon Street, in Chinatown in Sydney who advised her that the activity in which Mr Qu had been involved was not a criminal offence in Australia, so he need not disclose it. This was in June 1996. On the basis of this advice, Mr Qu decided not to include details of his conviction in his migration application form. A friend in Shanghai filled out the form for him and he did not tell the friend of his criminal conviction.

14. Mr Qu said that criminal records are maintained by each local community in respect of its citizens. He did not tell the unit where he worked of his criminal conviction. They considered him an honest worker and provided him with a certificate stating that he did not have a criminal record. He took this to the Shanghai Hong Kou District Notary Public Office who issued him with a certificate dated 4 December 1996 stating that he had no criminal convictions (T p65). When he was asked to supply another certificate in 1999, Mr Qu obtained a certificate from the Shanghai City Notary Public Office. They would have obtained his file from his local community in order to prepare the Notarial Certificate but, because of an administrative mistake, his file did not record his conviction and so the notarial certificate dated 19 July 1999 (T p143) recorded him as having no criminal convictions.

15. Mr Qu was asked about the interview he had at the Australian Consulate- General in Shanghai on 28 August 1999 (T p31). He confirmed that he had answered "Yes" to the question "Do you agree you have knowingly provided a false document and made a false declaration?" Mr Qu was also asked about his interview at the Consulate-General on 19 September 1997. He recalled saying at the interview that his older sister, who lives in Australia, was friends with his wife.

16. Mr Qu said he is working as a salesperson, selling hardware products. He used to repair cars and, if he is permitted to come to Australia, he would look for that kind of work. He said he is a skilled worker and graduated from technical college although he does not have a certificate. Mr Qu said he lives by himself and his parents live nearby. He has three older brothers in China, and one older sister who is married and living in Sydney. Mr Qu said he very much regrets his past misconduct and hopes the Australian Government will permit him to enter Australia and be reunited with his wife. He believes a husband and wife should be together.

17. Ms Mao stated she was married on 4 November 1996. She first came to communicate with her husband after she met her husband's mother who was visiting Australia, when they were both shopping at Liverpool. Through his mother, she also met Mr Mao's sister who, with her husband, lives in Australia. Ms Mao said her husband told her of his criminal record during a telephone conversation in June 1996. He said he had a disreputable past and that he had been in prison between 24 October 1990 and 24 April 1995, a period of four and a half years.

18. Mr Qu explained to Ms Mao that his friend Suen Wei Qiang had owed him over RMB 2,200 yuan and was unable to pay him back. Mr Suen suggested that Mr Qu should assist him in making some foreign exchange deals and that Mr Suen would repay that debt out of the profits he made from the deals. Ms Mao said her husband told her that he played a relatively minor part, trying to attract customers to change money. He was not actually involved in the deals themselves. As soon as Mr Qu had recovered the money which he was owed by Mr Suen, he withdrew from this activity. He told Ms Mao that he did not believe that he was guilty of an offence. Ms Mao said she was touched by his honesty, believed her husband and forgave him. In the course of their letters and telephone conversations, she found him to be an honest person and quite timid. She said he respects elders, loves children, and is considerate of others.

19. Ms Mao said she believed Mr Suen was the principal person involved in the criminal conduct. She is not aware how long her husband participated in this activity and she did not see the court papers about her husband's conviction before their marriage. Ms Mao agreed that her husband had not disclosed his criminal conviction in his migration application form. When they became aware of the question asking about criminal convictions in the application form, she went to see a Migration Agent, Zhu Tao (Peter) in Dixon Street, Chinatown. This was on 2 June 1996. Mr Zhu told her that her husband would not have the same criminal record in Australia because the amount of money was so small. He advised that Mr Qu could choose whether or not to disclose the criminal conviction when completing the migration application form. Ms Mao said she passed this information on to her husband in a telephone conversation on the same day and so her husband did not insert details of his criminal record in the application form..

20. Ms Mao said Mr Zhu has closed his office in Dixon Street and she no longer knows his whereabouts. Her husband subsequently obtained a certificate which did not record his conviction which he submitted with his application. Ultimately, the departmental officers told him that the certificate was false and asked him to obtain a copy of his record from the court and submit that. Ms Mao said she last saw her husband in April 1999 when she went to visit him in China. Since then, they have maintained contact by letter and telephone. Ms Mao has not returned to China since because she has been busy running her business, looking after her elderly parents and supporting her daughter. She has not considered returning to China to live with her husband.

21. Ms Mao said her parents are in their 70s and are in Australia on bridging visas having applied for permanent residence in Australia in the form of subclass 804 (aged parent) visas. They are awaiting decisions on their applications. Ms Mao said her parents' health is not good: although they have no serious illnesses, they suffer from fevers and flu. Ms Mao is their only child and they live with her. Her daughter, who is aged 20, also lives with her. She was studying at TAFE college last year and will be commencing a degree in English and Mathematics at Macquarie University in early March 2003. Ms Mao said that apart from her parents and daughter, she has no other family in Australia and no other family in China. Ms Mao says she has a close relationship with her daughter and believes it is important to be in Australia to look after her. She cooks and washes for her and will continue to look after her until she is married. Her daughter has been to China on two occasions: once when she was aged 12 and also on one other occasion. Her daughter helps Ms Mao caring for her parents. In particular, she assists them with English, for example, if they have to see the doctor. Ms Mao said her own English is poor. When she goes shopping she looks at the prices and picks things out and not much conversation is involved.

22. Ms Mao said that in December 2000 she started a business making soft toys that she sells to wholesalers. Her parents assist her in the business. If her husband is permitted to come to Australia she thinks he will be able to contribute to the Australian community. He is currently a salesperson in a hardware factory but he also knows how to repair cars and she thinks he would obtain employment doing this.

23. As stated above, Mr Qu does not pass the "character test" by reason of s 501(6)(a) of the Act because he has a "substantial criminal record", defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. The Tribunal notes that in 1991 Mr Qu was convicted of the offence of fraud, for which he was sentenced to a fixed term of imprisonment of four and a half years (T p140).

24. The issue for the Tribunal therefore is whether to exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

25. 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.

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.

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.

26. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act including "presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia".

27. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

28. Before addressing the primary considerations, it is appropriate to make some general findings. There is no dispute that Mr Qu was convicted of the offence of fraud and sentenced to four and a half years imprisonment on 23 March 1991 (T p135). Mr Qu gave evidence that he participated in the activity by seeking to attract customers for foreign exchange transactions with his friend, Mr Suen.

29. Ms Mao said her husband knew Mr Suen was asking him to be involved in foreign currency transactions and only agreed to be involved in order to recover the money which he was owed. He was not aware that the activity involved fraud. Her husband told her that he was young and eager to get his money back. Mr Suen told him that if he wanted to recover his money, he would need to help Mr Suen. In China, private exchange of foreign currencies is not in itself illegal.

30. Mr Qu was not himself involved in those transactions and said he was not aware that his friend was defrauding the customers. He said he did not discover this until his friend was arrested. Mr Qu said he agreed to be involved in the activity because Mr Suen owed him RMB 2,200 yuan, which he could not repay, and Mr Suen said that if Mr Qu assisted him, he would repay him from the profits of the transactions. Mr Qu said when he had recovered the money owed to him, he withdrew from any further part in the activity.

31. While Mr Qu denies knowing that the foreign exchange dealings by his friend involved cheating and fraud, this does not seem very plausible to the Tribunal. The Tribunal notes that the court verdict (T p139) records that "All the defendants have confessed their guilt", and found that the evidence was sufficient to establish that the defendants, by their conduct, "have violated the criminal law and constituted the crime of defraud".. The court convicted and sentenced the nine co-accused for the crime of fraud with sentences varying from three to eight years, Mr Suen Weigiang receiving the longest sentence and, additionally, being "deprived of political right for two years". The court refers to the money defrauded as being a large amount. While Mr Qu claims that the money he obtained from the activity was merely the repayment of his loan of RMB 2,200 yuan and that this was not a large sum, the court obviously treated the criminal activity as being serious.

32. Both Mr Qu and Ms Mao gave evidence about why Mr Qu ticked "No" to question 70 in the migration application form asking whether he had been convicted of a crime or offence (T p53). Ms Mao said that on 2 June 1996 she sought the advice of a Migration Agent named Zhu Tao (Peter) who had an office in Dixon Street, Chinatown. He advised that since the amount of money involved in the crime was small and because this would not be a criminal offence in Australia, it was up to Mr Qu whether or not he should disclose his conviction. Ms Mao and Mr Qu discussed this on the phone and Mr Qu decided not to reveal his conviction in his migration application form. The Tribunal notes that this account of advice from Mr Zhu has not been given previously. Mr Zhu is no longer running a business in Dixon Street and could not be located by the Respondent.

33. The Tribunal finds that Mr Qu has supplied two Notarial Certificates dated 4 December 1996 (T p65) and 19 July 1999 (T p143) stating that he has no criminal record. His evidence is that the first certificate, from the Shanghai Hong Kou District Public Notary Office, was provided on the basis of information supplied by Mr Qu's work unit who were not aware of his conviction. In the case of the second certificate, from the City of Shanghai Public Notary Office, the Office had not obtained details of his conviction from his local community who hold such records as a result of an administrative error. In both cases, Mr Qu was obviously aware that the certificates were incorrect and likely to mislead. It is clear that it was his intention to hide his conviction from the Australian authorities. It was only when he was challenged about this at an interview at the Australian Consulate-General in Shanghai on 28 September 1999 (T31), following the Consulate-General having received anonymous information that Mr Qu's Notarial Certificates and marriage were not genuine, that he acknowledged his conviction.

34. Mr Qu and Ms Mao were married in Shanghai on 4 December 1996 after knowing each other for a short time. Ms Mao has not seen her husband since her last visit to China in April 1999. They maintain contact by letter and telephone. Mr Qu lives alone in Shanghai where he works as a salesperson in a hardware factory. His parents and siblings live in Shanghai except his sister who is married and lives in Sydney.

35. Ms Mao arrived in Australia on 14 June 1991 and has been an Australian citizen since 5 May 1997. She has a daughter aged 20 living with her who is commencing an undergraduate degree in English and Mathematics at Macquarie University in March 2003. Ms Mao is an only child and her parents are also presently living with her in Sydney. Her parents have applied for subclass 804 (aged parent) visas to enable them to remain permanently in Australia, and are presently on bridging visas. Ms Mao has started a small business, in which she is assisted by her parents, making soft toys for sale to wholesalers. She stated that she cannot go to China because she must support her daughter and parents and now has a small business to run to provide financial support for her family.

36. Turning to the first of the primary considerations, the protection of the Australian community, there is no dispute that Mr Qu was convicted of fraud in 1991. The sentence of four and a half years received by Mr Qu on conviction indicates that the offence was viewed seriously by the Chinese court. The Tribunal also notes that Mr Qu's conduct in making a false declaration on his migration application form by not revealing his criminal conviction and in supplying Notarial Certificates which he knew to be incorrect in so far as they stated he did not have a criminal record, constitutes serious immigration misconduct and an offence pursuant to s 234(1) of the Act. The second of the Notarial Certificates was provided to the Australian Consulate-General in Shanghai in July 1999, and it was only when the Consulate-General received anonymous information that the certificates were not genuine, that Mr Qu was challenged about these. Nevertheless, when challenged at his interview on 28 August 1999, he acknowledged his conviction and sentence.

37. Both Mr Qu and Ms Mao state that they relied on advice received from a Migration Agent in Sydney in June 1996 in deciding not to reveal Mr Qu's conviction when completing his migration application form. They were advised that since Mr Qu's offence was not an offence in Australia, they had a choice as to whether or not they should reveal this.

38. Mr Zhu, for the Applicant, contended that Mr Qu has been a good citizen of China since his release from prison in April 1995 and will not repeat his misconduct. Mr Grimm, for the Respondent, contended that Mr Qu's actions were self-serving and the evidence suggested that there is a risk that he would not respect Australian laws if he is allowed to enter Australia. Mr Grimm submitted that a refusal of Mr Qu's migration application would send a message to other applicants that immigration is not acceptable to the Australian community and would result in non-citizens being refused entry.

39. The second primary consideration is the expectations of the Australian community. The Respondent stated in its Statement of Facts and Contentions that the Australian community would expect that a person such as Mr Qu who had committed immigration misconduct, including dishonesty, would not be permitted to enter and remain in Australia. Mr Grimm referred to Deputy President McMahon's decision in Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575 at para 26:

...it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.

40. The third of the primary considerations to which the Tribunal is referred is the best interests of any child or children of the person under consideration. This is not a relevant consideration in this case because Mr Qu has no children and Ms Mao's daughter has had little or no contact with Mr Qu and, in any event, is now aged 20.

41. 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.

42. Mr Zhu drew the Tribunal's attention to Ms Mao's family situation in Australia in which she cares for her elderly parents, being an only child, and for her daughter who is a student at university. Mr Zhu said Ms Mao has a right to a family life. She and her husband have been separated for over six years and they should now be permitted to reunite and live their life together. Mr Grimm contended that Ms Mao could return to China to live with her husband. Her daughter is old enough to be independent and her parents could also return to China. Mr Mao's family, with the exception of his sister in Australia, is entirely in China and he has no ties to the Australian community other than as a result of his marriage to Ms Mao.

43. Weighing up the primary and other considerations, the Tribunal's view is as follows. Mr Qu committed a serious offence in China and has been guilty of immigration misconduct, most recently in 1999. The Tribunal has no substantial evidence to confirm Mr Qu's rehabilitation and as to his recent good conduct. His conduct in the past appears to the Tribunal to have been self-serving and the Tribunal is not satisfied on the material before it that he would not engage in similar conduct if he believed it would promote his interests. The Tribunal also recognises that refusing a visa in such a case of misconduct may deter others who are contemplating misconduct. The Australian community expects that those who abuse our migration system should not be allowed to enter and remain in Australia.

44. While the Tribunal recognises that the denial of a visa to Mr Qu will cause hardship to Ms Mao, the Tribunal is not satisfied that such hardship is sufficient to outweigh both the needs to protect the Australian community and its migration system and the expectations of the Australian community. Had there been more substantial evidence about Mr Qu's character and, in particular, as to his rehabilitation and recent good conduct, the Tribunal might have taken a different view. However, in the absence of such material, the Tribunal considers that the correct and preferable decision is that Mr Qu's migration application should be refused. The Tribunal therefore affirms the decision under review.

I certify that the preceding 44 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed: .......................................................................................

Representative for the Applicant Mr J Zhu, Migration Agent

Representative for the Respondent Mr A Grimm, Solicitor