Channa and Minister for Immigration and Multicultural and Indigenous Affairs

DECISION AND REASONS FOR DECISION [2002] AATA 1338

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2002/364

GENERAL ADMINISTRATIVE DIVISION       )
           Re      OL CHANNA
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date20 December 2002
PlaceMelbourne

Decision      The decision under review is set aside and the matter remitted to the respondent for reconsideration with a direction that the visa application not be refused under s501 of the Migration Act 1958.
   [Sgd S P Estcourt QC.,]
  Deputy President
CATCHWORDS
Immigration - spouse visa sub-class 309 - refusal to grant - character test - false and misleading conduct in dealings with immigration authorities - Ministerial Direction No 21 - genuine marriage to an Australian citizen –compassionate claims of Australian partner - degree of hardship to immediate family members - decision to refuse set aside.
Migration Act 1958 – s501
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 115
Re Chau and Minister for Immigration and Multicultural Affairs (2001) AATA 485
Wan v Minister for Immigration and Multicultural Affairs (2001) FCA 568

REASONS FOR DECISION

20 December 2002 Mr S P Estcourt QC., (Deputy President)

This is an application by Ol Channa ("the review applicant") for the review of the decision of a delegate of the respondent to refuse to grant a Sub-class 309 (Spouse) Visa to Sopheap Prak ("the visa applicant") on the basis that she failed to satisfy the respondent's delegate that she failed to pass the character test under s501 of the Migration Act 1958 ("the Act").
Section 501 of the Act provides relevantly:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…
501(6) For the purposes of this section, the person does not pass the character test if:
…
(c) having regard to either of the following:
…
(ii) the persons past and general conduct;
the person is not of 'good character'."
The exercise of power under s501 of the Act involves, first a consideration of whether the visa applicant is of good character and second, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In considering whether a non-citizen is not of good character, decision- makers are required by Ministerial Direction No.21, (made under s499 of the Act to provide guidance in making decisions to refuse or cancel a visa under s501), to consider a number of matters which where relevant, would in the absence of any countervailing factors constitute a failure to pass the character test.
Ministerial Direction No. 21 binds the Tribunal.
One of the matters which, if relevant, would in the absence of any countervailing factors, constitute a failure to pass the character test is:
"Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement."
If a person fails to discharge his or her onus to satisfy the Tribunal that he or she passes the character test, then Ministerial Direction No.21 requires the Tribunal when considering the exercise of the residual discretion under s501 of the Act to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The three primary considerations are:
(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.
A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No. 21, a consideration of:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated;
(c)the likelihood that the visa refusal would prevent like offences by other persons.

The "other considerations" are set out in Direction No. 21 and the Tribunal is required to take them into account but generally accord them less individual weight than the three "primary considerations".
In this respect, the Direction provides as follows:
"OTHER CONSIDERATIONS
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. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
'The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.'
Article 17.1 provides that:
'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.'
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
in assessing the compassionate claims of the Australian partner (Australian citizen, permanent resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;
(d)       family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)       any evidence of rehabilitation and any recent good conduct;
(i)        whether the applicant is for a temporary visa or a permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellations provisions at section 501."

The Tribunal finds the following facts.
The review applicant and the visa applicant were married in Cambodia on 18 April 2001. The review applicant is an Australia citizen, having been granted Australian citizenship on 21 July 1998.
On the day before the review applicant returned to Australia from Cambodia after the couple's wedding, he lodged a spouse visa application on behalf of his wife.
As part of processing that visa application, the visa applicant was interviewed at the Australian Embassy in Phnom Penh on 12 March 2001.
During that interview the visa applicant was asked whether she had previously applied for a visa to Australia under a different identity, and she replied that she had not.
The fact of the matter is that on 13 June 1996 the visa applicant lodged an application for a Sub-class 300 (Prospective Spouse) visa under a false identity of Chhay Hieng Seav.
During the processing of that visa it was discovered by migration officials that the sponsor for the application was the visa applicant's biological brother. As a result the application was refused on the obvious ground that any such marriage could not have been valid as it involved a prohibited degree of relationship.
During the later part of the visa applicant's interview in Phnom Penh on 12 March 2002, it was put to her that she had lodged a prospective spouse visa application which contained false and misleading statements. Initially, she claimed that she did not know about the application, but later agreed that it was arranged by her brother and that he completed that application and sent it to her to sign the form. She said that she signed the form because she wanted to go to Australia because it was safe.
Notwithstanding the visa applicant's claims of reliance on her brother and her lack of knowledge of English, I am satisfied that her involvement in the prospective spouse visa application and her performance during the early part of the interview at the Australian embassy involved her in the making of false and misleading statements in connection with an application for the grant of a visa and that there are no countervailing factors. I hold therefore that the visa applicant fails to pass the character test.
Turning to the residual discretion under s501 of the Act to nevertheless grant a visa in the face of a failure to pass the character test, Ministerial Direction No. 21 requires as I have already observed a balancing process between three "primary considerations" and a number of "other considerations".
A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, as I have already noted, a consideration of:
(d)the seriousness and nature of the conduct;
(e)the likelihood that the conduct may be repeated;
(f)the likelihood that the visa refusal would prevent like offences by other persons.
Ministerial Direction No. 21 makes it clear that the Australian government regards serious offences against the Migration Act as very serious. This is not surprising as s234 of the Act makes it an offence, in connection with the visa application to make a false or misleading statement and provides a penalty for a breach of that section of 10 years imprisonment or a fine of $110,000 or both. I am satisfied therefore that the visa applicant's conduct is serious notwithstanding, as I have already observed, she spoke and understood little English and was acting under the advice and influence of an Australian citizen.
As Deputy President McMahon said in Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR at 115-156:
"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 when dealing with the many reasons for coming to Australia."
As to the likelihood that the conduct may be repeated, the fact that the visa applicant's application is for a permanent visa renders it remote that this sort of behaviour would again manifest itself particularly as it now appears that she appreciates the gravity of her conduct and its repercussions.
As to the question of general deterrence I am satisfied that in a case such as this, if the visa applicant is refused entry because of her breach of Australia's migration laws, other persons similarly minded may be deterred form following suit.
As Deputy President Wright noted in Chau v Minister for Immigration and Multicultural Affairs [2001] AATA 485 at para.25:
"In my opinion the only effective way of announcing loudly and clearly to prospective migrants from [Cambodia], that they must tell the truth in any application which they make, is by refusing visas to those who make use of fraudulent documents and untrue representations to gain entry into Australia. As to the expectations of the Australian Community, it is my view that it is expected that non-citizens will be open and honest with migration officials in relation to visa applications and the community would not expect a person who contravenes Australia's migration laws to later be afforded the privilege of a visa."
There is not, in this case any relevant parental relationship.
In addition to the three "primary considerations" set out in Direction No. 21, I am required to have regard to relevant "other considerations".
I am satisfied that the review applicant's marriage to the visa applicant is a genuine marriage and that at the time of that marriage the review applicant had no knowledge of any migration misconduct on the part of the visa applicant.
It was not conceded by the respondent that the marriage between the review applicant and the visa applicant was genuine. The respondent questioned the depths of feelings which the visa applicant and the review applicant could have developed in such a short period of time spent together.
I am however, as I have said, satisfied that the marriage is genuine. I have had the advantage of seeing and hearing the review applicant give evidence and of hearing the evidence of the visa applicant, all of which was tested by cross-examination.
The review applicant first met the visa applicant's brother in a refugee camp in Indonesia in about 1990 and formed a friendship with him. In 1992 he went with his wife's brother to their house in Cambodia for a meal. In the year 2000 his wife's brother showed the review applicant a photograph of her and he said he fell in love with her. He told her brother he would like to marry her. Her brother made enquiries by telephone and told the review applicant that his sister was agreeable. The review applicant then telephoned the visa applicant and the couple agreed to marry.
When cross-examined about this, the review applicant said that the phone call lasted for about half an hour, that he asked the visa applicant if he said that he loved her what would she say and she said that she would really like to marry him. She said it was up to the "elderly people" and if they could arrange it, it was okay with her. The review applicant was not shaken in cross-examination.
The visa applicant confirmed her husband's evidence as to the events leading to their wedding and she was not shaken in cross-examination in relation to the genuineness of their marriage. She said:
"I met him once in 1993 and I could judge that he was a good person. I also trust my brother to select the right person to be my husband."
I am well satisfied by the evidence given by the review applicant and the visa applicant, which I will shortly relate, concerning their feelings for each other and the despair which they suffer as a result of their separation that their feelings are deep and sincere. I am not prepared to infer otherwise simply from the absence of a stereotypical western courtship.
It is relevant when assessing the compassionate claims of the Australian partner in this case to note that he had no knowledge at all that his wife was of character concern to migration officials at the time he entered into the relationship of marriage with her. His wife did not tell him of her earlier visa application and the first he knew of it was when the spouse visa application was rejected in the circumstances related earlier in these reasons.
As to the compassionate claims of the review applicant and the degree of hardship that would be caused to immediate family members lawfully resident in Australia I note the following evidence which I accept.
The review applicant is the third of a family of four children. His father died during the Pol Pot regime when he was about 10 years old. His mother came to Australia by way of 27 days on a boat in 1990.
At the same time the review applicant fled Cambodia escaping to Indonesia where he lived for some four years prior to arriving in Australia in October 1994.
The review applicant keeps in touch with his wife by telephone, usually about twice a month although up to about four times a month and by letter about once a month. This has been the pattern for the whole 18 month period since their marriage and subsequent separation.
The review applicant gave evidence that if a visa was not granted to his wife it would break his heart and that he would have to sell his house, leave his job and go back to live with his wife in Cambodia, thus destroying his future in Australia.
The review applicant said that since the refusal of his wife's application he had become a different person, that he had taken up alcohol and cigarettes and was unable to attend his employment regularly.
On one occasion the visa applicant under the influence of alcohol mutilated his arm with his fingernail and a razor. He also demonstrated marks on his body where his skin had been scored with the edge of a coin in an attempt to remedy his depression.
In a report dated 16 October 2002, prepared understandably for medico-legal purposes, psychiatrist Dr Edward Cole opined:
"Mr Channa is suffering from a chronic reactive depression of mild to moderate degree. His condition is to be seen as stemming from his enforced separation from his wife and from the uncertainty he feels about his future.
It would be appropriate for him to receive psychiatric treatment, although I doubt it would do more than control the worst of his anxiety and depression …"
The review applicant's evidence was that if he were to leave to go to Cambodia to be with his wife, his mother would be heartbroken and that it would be hard for him to be away from his relatives in Australia but, being caught between his mother and his wife, he would have to think of his wife first as she would be shamed if she were married and had no husband with her.
The visa applicant gave evidence that since her husband returned to Australia, life in Cambodia has been one of hardship for her, particularly feeling shamed as a result of being married but not with her husband. She confirmed her love for her husband and expressed the view that it would be very hard for her if her husband gave up his life in Australia to come to live with her in Cambodia, as he would be giving up a good and secure life in Australia. She confirmed her husband regards Australia as his home country.
There are cases where the strong compassionate claims of an innocent Australian partner can outweigh the operation of the primary considerations upon the migration misconduct of the Australian citizen's partner. In my view this is one of them.
In this case I accept the genuineness of the review applicant's evidence that he will give up his life in Australia in order to be with his wife. The consequence of that is the forfeiture of Australian citizenship. The Full Court of the Federal Court recently reminded this Tribunal of the significance of Australian citizenship, albeit in a somewhat different context, in the decision of Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568.
Further in this case the alternative for the review applicant is one of continued depression reactive to his forced separation and moreover the dilemma for the review applicant is rendered all the more poignant for the competing claims of his mother.

I accept as I have already noted the evidence of the review applicant set out above and that of the visa applicant. I am satisfied that in this case the plight of the review applicant, innocent of any blame and involving either on the one hand continued psychiatric illness or on the other, the loss of Australian citizenship and all the benefits that accompany that status, outweighs the strong competing primary considerations of the protection of the Australian community and the expectations of the members of that community.
It follows that the order of the Tribunal is that the decision under review is set aside and that the matter is remitted to the respondent for re-consideration with a direction that the visa applicant not be refused under s501 of the Migration Act 1958.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed:         .....................................................................................
  Administrative Assistant
Date/s of Hearing  28 October 2002
Date of Decision  20 December 2002
Counsel for the Applicant        Mr A Krohn
Solicitor for the Applicant         TT O'Brien
Counsel for the Respondent    Mr D Wood
Solicitor for the Respondent    Blake Dawson Waldron

[2002] AATA 1338

20 December 2002

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Immigration Status

Character Test

Refusal of Visa

Ministerial Direction

Genuine Marriage

Hardship

Judicial Review