Tan and Minister for Immigration and Multicultural Affairs [2001] AATA 308 (22 March 2001)

Last Updated: 27 April 2001

DECISION AND REASONS FOR DECISION [2001] AATA 308

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1464

GENERAL ADMINISTRATIVE DIVISION )

Re JOO-KEE TAN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President J. Block

Date 22 March 2001

Place Sydney

Decision The decision under review is affirmed.

..........(signed J. Block)...........

Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP - employer nomination visa - refusal on character grounds - whether visa applicant meets character test - previous overstay of visitor visa on two occasions - work without permission - whether hardship to potential employer or other Australian citizens.

Migration Act 1958 - ss 234, 235, 499, 501

Administrative Appeals Tribunal Act 1975 - s 37

REASONS FOR DECISION

12 April 2001 Deputy President J. Block

1. The decision under review is the refusal dated 8 May 2000, of an application for a permanent visa class AN (Employer Nomination - Migrant) by Peng Soon Yoong ("the Visa Applicant"), and in respect of which application Joo-Kee Tan ("the Applicant") was the sponsor.

2. The Applicant was represented by Mr Bobby L. Kok, a migration agent, and Mr Leonard Leerdam, of Sparke Helmore, solicitors, appeared for the Respondent.

3. The Tribunal had before it the T documents, and also supplementary T documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Since they are not numbered sequentially, T references relate to the T documents while S references relate to the supplementary T documents. The Tribunal also had in evidence before it exhibits as follows:

a. Exhibit A1 is a letter by the Applicant dated 19 October 2000.

b. Exhibit A2 is a letter by Mr David Clift dated 19 October 2000.

c. Exhibit A3 is a letter by Jasmine Wong dated 18 October 2000.

d. Exhibit A4 is a letter by the Visa Applicant dated 24 October 2000.

4. I commence, in order to set the scene and by way of background, to quote from certain of the documents before me.

(a) Clause 1 of the Respondent's Statements of Facts and Contentions, dated 11 December 2000, is headed "Facts". It reads as follows:

"1.1 The Visa Applicant, Mr Peng Soon Yoong, was born in Malaysia on 19 October 1960.

1.2 The Visa Applicant first entered Australia on 6 July 1981 as a visitor and was granted a temporary entry permit for a period of three months. Departmental records indicate that the Visa Applicant left Australia on 17 November 1982 (T18, page 127), some 16 months after his entry into Australia. Given that he was not granted any extension of his initial temporary entry permit, he overstayed by 13 months in Australia.

1.3 The Visa Applicant next arrived in Australia on 30 October 1983, again for an authorised period of three months, without permission to work. His entry permit expired on 30 January 1984, and he became a prohibited non-citizen at that time.

1.4 On 9 December 1987, in the company of his adviser, he attended the offices of the Department of Immigration and Ethnic Affairs, and was interviewed by departmental officer (T9). At that time, he asked for permission to depart Australia on a voluntary basis, and that permission was given. He signed an acknowledgment requiring him to produce within 48 hours a ticket for departure, scheduled for the first available transport to his country of nationality.

1.5 However, the Visa Applicant did not comply with this directive. In fact, the Vis Applicant and his de facto wife remained in Australia for a further 11 years, departing Australia on 14 April 1999 after his spouse had come to the attention of the Department of Immigration and Multicultural Affairs for working without authority.

1.6 The Applicant's wife, Ms Ng Hong Kim, was located by officers of the Department on 17 March 1999. She was detained and released after being granted a bridging visa on payment of a $5,000 security. As a result, the Visa Applicant and his wife departed Australia on 14 April 1999, their departure monitored by the Department.

1.7 On 23 December 1999, an application under the Employer Nomination Scheme (ENS) was lodged by Avillion Hotels International Pty Limited, a sponsor in relation to the Visa Applicant. The Vis Applicant was the nominated employee.

1.8 On 31 March 2000, the application by the Avillion Hotel was approved.

1.9 On 8 August 2000 the Visa Applicant lodged an application for a permanent visa class AN Employer Nomination (Migrant). His spouse, Ms Ng Hong Kim, was named as a dependant applicant. The Visa Applicant was interviewed on 16 May 2000. Details of that interview are located at pages 191-193.

1.10 On 17 May 2000, the applicant was given an opportunity to comment on the proposition relating to his general conduct in Australia, in particular his breach of immigration laws over a lengthy period of time (T21). A reply was received from the Visa Applicant on 10 June 2000 (T23).

1.11 On 14 August 2000 the application for an Employer Nomination Visa was refused on character grounds.

1.12 On 15 September 2000 the Revue Applicant Mr Joo-Kee Tan applied for a review of this decision."

(b) If only by way of balance, I quote a part of the Applicant's undated submissions, forwarded by Mr Kok under cover of a letter dated 31 October 2000, and which presumably were intended to serve as the Applicant's Statement of Facts and Contentions.

"Mr Yoong and his wife failed the character test on the following grounds:

- They remained unlawful in Australia on two occasions, the first occasion for 13 months and the second for 15 years.

- Both worked illegally while in Australia.

Protection of the Australian community

Mr Yoong and his wife have always admitted to their wrongdoing, and shown remorse as is evidenced in the letter that Mr Yoong has written in his submission to the Australian High Commission, Kuala Lumpur, and now his letter addressed to the Administrative Appeals Tribunal.

Mr Yoong and his wife overstayed their visas in total 18 years during which time they assimilated into the Australian culture and way of life, and have formed longstanding friendships with friends.

They have no children, thus their ties formed with friends in the 18 years in Australia have been more meaningful to them than any other ties. When Mr Yoong came to Australia he was 21 years of age, when he departed Australia in 1999 he was 39 years of age. Thus he has spent the best years of his adult life in Australia, during which time he has formed many close relationships with friends.

Mr Yoong has assimilated so well into the Australian community that upon his return to Malaysia after an absence of over 15 years he had great difficulty in re-adapting himself to Malaysian life.

Mr Yoong has lived a life of uncertainty in Australia. He has suffered by remaining illegally in Australia. Due to these uncertainties he could not put down any roots by purchasing a home in Australia, even though he has been living here for over 15 years. Nor could he and his wife plan for a family, because they did not want to cause any trauma to their children under such circumstances. He has not been able to plan for a future whether financially, physically or emotionally, therefore it is untrue to say that he did not feel remorse or regret for his decision made over 15 years ago...."

5. In respect of the evidence of the Applicant:

(a) He is a director of Reliance Nominee Pty Limited, and also of Avillion Hotel International Pty Limited; the former company owns the site at the corner of Liverpool Street and Pitt Street, Sydney, on which the Avillion Hotel was constructed, which opened for business in March 1999; the latter company operates the hotel business. The two companies are controlled by the same Malaysian interests.

(b) The hotel, which is large and substantial, consisting as it does of two wings and 445 rooms, has traded successfully. It caters mainly, but not exclusively, to clients from South East Asia; in the calendar year 2001 to date, its figures include:

i. 12,729 room nights for customers from Japan

ii. 11,130 room nights for customers from Malaysia

iii. 6,779 room nights for customers from Korea

iv. 3,095 room nights for customers from China

(c) The Avillion Hotel is associated with a hotel of the same name in Malaysia, which is also substantial, and in particular has a considerable number of qualified chefs.

(d) The Head Chef in the Avillion Hotel in Sydney, is a German now resident in Australia. The hotel, because it caters so heavily for Asian clients, needs a chef who is expert in Asian cuisine. The Applicant believes that the Visa Applicant is suitably qualified, having first met him in Australia while he was working at the Nikko Hotel. An offer was made to him to come to work at the Avillion Hotel in Sydney. It was thought that he could train others and thus enhance the hotel's reputation and its business.

(e) The Visa Applicant has never worked for the Applicant or the companies of which he is a director. When asked by Mr Leerdam whether denial of a visa would constitute hardship, he said that it would not, but then on re-examination by Mr Kok said that the hotel needs a person such as the Visa Applicant to enable it to provide Asian cuisine of suitable quality, and so as to compete for the convention business currently enjoyed by its competitors. He went on to emphasise that this was especially so, post-Olympics and in a time when trading is not as profitable as it has been.

(f) The Applicant said that the Visa Applicant suited his purposes particularly because the Visa Applicant wants to come to Australia, and because he and his wife have no children. He was asked whether it was not possible that this position be filled by one of the many chefs at the Avillion Hotel in Malaysia; he said that they had families and in any event, there were none who wanted to come to Australia.

6. Oral evidence was given by Mr David Clift, manager of Client Information Services at the Department of Mineral Resources. He and his wife (she is of Malaysian/Chinese origin) have known the Visa Applicant and his wife, Ms Ng Hong Kim ("Ms Kim") for about 11 years. He said that he and his wife heard of the illegal status of the Visa Applicant and Ms Kim only when they became obliged to return to Malaysia in 1999. Prior to that he had no idea that they were illegal.

7. Ms Jasmine Wong, who works in computer software, next gave evidence. She is herself from Malaysia, and she has known Ms Kim for some 15 years. She has known of the fact that they were illegally in Australia since about 1990. The friendship between Ms Wong and the Visa Applicant and his wife is clearly close; there has been a substantial degree of reciprocated support between them. Ms Wong spoke most warmly of the Visa Applicant and his wife, and testified as to her belief that they are good people. She said that they lived in constant fear while in Australia. She told the Tribunal that the Visa Applicant and his wife had been childhood sweethearts, and so that their relationship (although they married only after their return to Malaysia in 1999) is of long-standing, although not always harmonious. She said, moreover, that the Visa Applicant is currently a chef in Malaysia but that Ms Kim is not working, although she worked successfully as a hairdresser in Australia.

She was asked about whether denial of a visa would cause hardship to her. She answered, fairly enough, that she could not evaluate it in monetary terms. She said that although she is not a relative, there are times when a friend can be closer than a relative.

8. In respect of the evidence of the Visa Applicant, who gave evidence by telephone link from Malaysia:

(a) He first came to Australia in 1981 on a visitors visa; he said that it was always his intention to seek work in Australia. He also said that he fell in love with Australia and decided to stay. Within 2 weeks he was working (illegally) at Kentucky Fried Chicken. Some 15 months later he returned to Malaysia; in answer to a question as to why he did so, he said that his mother was ill. That answer was not consistent with an answer to question 3.9, which appears in the record of an interview in December, 1987. Page 65 of the T documents indicates that the question was, "Have you entered Australia before? If 'yes', when did you arrive and depart and under what names?". And the answer was, "Yes, 1981, visitor. Stayed 15 months. I left Australia. I was homesick. I left by myself but I was questioned at the airport".

(b) Although, as appears from T page 65, the Visa Applicant was questioned at the airport as to the fact that he had stayed and worked in Australia illegally, he returned to Australia some 10 months later. He again came on a visitor's visa and he admitted that he came in order to live and work in Australia. He said that he wanted to live in Australia.

(c) T page 105 sets out the Visa Applicant's work history in Australia; it indicates that he worked in particular at City Tattersalls Club, at Suntory Japanese Restaurant, at Miyako Japanese Restaurant, at Okori Teppanyaki Restaurant, at Hotel Nikko and at Sushi Express Restaurant. There was a period between January 1989 and January 1991 when he was not employed as a chef and when he was a part-time taxi driver.

(d) Ms Kim joined the Visa Applicant in about 1985 and, except that they were separated between 1987 and 1989, they have been together ever since. She too came on a visitor's visa and she too worked in Australia illegally, as a hairdresser.

(e) In December 1987, and at a time when the Visa Applicant was separated from Ms Kim, he applied to the Department of Immigration and Ethnic Affairs for permission to leave Australia on a voluntary basis. Permission was given on the basis that he was obliged to obtain the necessary ticket within 48 hours. However, and immediately after the interview, he decided nevertheless to stay in Australia, having previously received an offer of employment from Okori Teppanyaki Restaurant; that offer is T7 of the T documents.

(f) T9 (page 58) indicates that the Visa Applicant answered, "Yes", to the questions as to whether he used a false identity and whether he claimed benefits to which he was not entitled. He used the name "Nelson Yoong" specifically, so he said, in order to avoid the immigration authorities; he obtained a Medicare card, he said, at the request of his employer, although he also said that he stopped using it some 4 years later when he realised that it was illegal for him to have it. He emphasised that he paid full tax, inclusive of Medicare levy, while working in Australia.

(g) In 1999 Ms Kim's presence in Australia was detected by the Department of Immigration and Multicultural Affairs ("The Department") and she was in consequence detained and obliged to furnish a bond. The Visa Applicant and his wife then went back to Malaysia. Although he had discussions with the Applicant prior to leaving Sydney, it was in Malaysia and in 1999 that he received an offer of employment at the hotel.

(h) There was some considerable discussion as to the attitude of the interviewing officer when the Visa Applicant was interviewed in Malaysia in connection with this application. The interviewing officer thought, according to her notes, that he did not express remorse; he, on the other hand, thought that she was not polite. Mr Kok, in his opening address, suggested that she had asked questions which were inappropriate or that her behaviour was otherwise inappropriate. The Tribunal does not think it necessary to delve into this question in any detail because nothing turns on it.

(i) The Visa Applicant was asked on a number of occasions why he had never sought to legalise his status. Mr Kok, his own advocate put to him that after 8 years experience as a chef, he qualified as such and could enter Australia without sponsorship; he said that he did not do so and had not made any relevant inquiries. A recurring theme throughout the Visa Applicant's evidence was that he and his wife knew that they were living illegally in Australia, and knew that they were working illegally in Australia, but they nurtured the hope that an amnesty for illegal non-citizens would some day be granted. On occasions that hope was put as a hope for a change in the law.

(j) The Visa Applicant was asked whether he thought that he was entitled to the grant of his application. He replied, that Australia gives "people a fair go" and that he thought that he was entitled to another chance.

(k) The Visa Applicant and his wife may have some means. T page 41 and succeeding pages refer to legal correspondence in connection with real property in Australia. As set out earlier in these reasons, he is currently working as a chef in Malaysia.

9. This brings me to consider Direction Number 17 entitled "Visa Refusal and Cancellation under section 501 of the Migration Act, 1958 ("The Act"). References to clauses in this paragraph 9 and also in paragraph 10 should be construed as references to numbered clauses in Direction 17.

(a) Clause 1.9(a) provides in dot point 4, that inter alia, breaches of Immigration Law constitute, in the absence of countervailing circumstances, a failure to pass the character test. The Visa Applicant worked illegally in breach of section 235 of the Act for approximately 15 years. A breach of section 235 of the Act provides (and notwithstanding Mr Kok's contentions to the contrary) for a fine not exceeding $10,000. Although it does not attract a sentence of imprisonment, the words "including but not limited to..." in clause 2.6(c) have the result, in my view, that the offences in question must be treated as serious. This is all the more the case when one takes into account the fact that the conduct in question happened on two separate visits over a period which aggregated approximately 16 years. Not to put too fine a point on it, the Visa Applicant simply disregarded the Act.

It is possible, if not probable, that the use of the false name was in breach of section 234 of the Act in that it was used in order to avoid the Department. Mr Kok contended in his closing submission that it was no more than an Anglicisation of an Asian name in much the same way as he uses the name Bobby as his first name. I would have been inclined to agree with that view but for the fact that the Visa Applicant himself said that he did this in order to avoid the attention of the Department.

I do not think it necessary to canvass the question of the Medicare card. I accept that it was not unreasonable for the Visa Applicant to think that if one paid tax including Medicare levy then Medicare benefits were obtainable.

(b) There being no evidence of recent good conduct, I must then find that the Visa Applicant does not meet the character test. I did not understand Mr Kok to argue that there is any question as to this aspect of the matter and much of the content of clause 9 has been inserted in these reasons for the sake of completeness.

10. This leads me then to consider the discretion conferred under part 2.

(a) Clause 2.3 provides that the 3 primary considerations are:

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

(b) the expectations of the Australian community;

(c) in all cases involving a parental relationship between a child or children, the best interests of the child or children.

Of course, 2.3(c) does not apply because there are no relevant children who interests need be considered.

(b) Clause 2.3 must be read in conjunction with clause 2.5 which provides that the factors relevant to an assessment of the level of risk are:

(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).

(c) As to clause 2.5(a), the conduct in question was, as I have found, indeed serious. I do not think that there is any real risk of recidivism since, if a visa were granted, there would be no need for the Visa Applicant to offend again. I consider, however, that to grant a visa in these circumstances would send entirely the wrong message to anyone either illegally in Australia or contemplating the prospect of becoming so.

(d) As to clause 2.3(b), I note that clause 2.12 provides in its terms that the Australian community expects non-citizens to obey Australian laws while in Australia and in this matter, the Visa Applicant disobeyed Australian laws consistently and for a long period while in Australia. In my view, the Australian community would expect me to refuse a visa.

(e) Clause 2.17 allows me to take into account, but as a secondary consideration, hardship to the non-citizen's family; in particular in this context, clause 2.17(a) refers to:

The extent of disruption to the non-citizen's family, business and other ties to the Australian community

There are no family members whose interests are affected, excluding of course Ms King and she is with the Visa Applicant in Malaysia. Moving as was the evidence of Ms Wong, she does not qualify under clause 2.17 as a relative. The Visa Applicant has no business ties in Australia; he has other ties, of course, in the form of friendships, and in particular with Ms Wong and Mr and Mrs Clift. The friendship with Ms Wong is clearly particularly strong; it must be noted that since the return of the Visa Applicant and his wife to Malaysia, she has visited them in Malaysia four times and phones them periodically and certainly every fortnight.

It follows then that there are little or no relevant hardship considerations which must be taken into account pursuant to the provisions of Direction 17. So far as the Applicant himself is concerned, the Tribunal notes that it finds it difficult to believe that in all of Malaysia there is no suitably qualified chef who would like to be sponsored into Australia. But there is certainly no economic hardship to the Applicant or the companies of which he is a director; the Visa Applicant has never worked for him or for either of those companies.

11. The Tribunal thinks it relevant to note that it does think that there are some tragic elements in this case. The Visa Applicant is a qualified chef, who while in Australia, worked hard, paid taxes and was good enough at his work to impress the Applicant. Had he not ridden roughshod over the Act, he might well have proved a very satisfactory resident and subsequently citizen of Australia. But it must be remembered that the Visa Applicant offended over a very long period and on two separate occasions. To overstay and work illegally in Australia during the second visit, having been questioned at the airport when he departed at the end of his first visit, can surely only be described as foolhardy in the extreme.

12. Mr Kok referred, in his closing submission, to the manner in which the Visa Applicant was interviewed at the High Commission in Australia. I have already indicated that I do not think that anything turns on the question of whether or not his treatment was polite or considerate. Mr Kok also seemed to believe that I have the power in effect to give him a second chance. The fact is that direction 17 is binding on me through force of section 499 of the Act and I must decide this matter in accordance with its terms and regardless of any feeling of sympathy which I might feel for the Visa Applicant.

13. This then is not a case where the discretion can be exercised in favour of the Applicant and the Visa Applicant, and accordingly the decision under review must be affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J. Block.

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

Dominika Rajewski, Associate

Date of Hearing 22 March 2001

Date of Decision 22 March 2001

Representative for the Applicant Bobby Kok

Solicitor for the Respondent Leonard Leerdam