Chheang and Minister for Immigration and Multicultural and Indige Nous Affairs
[2003] AATA 254
•18 March 2003
CATCHWORDS – IMMIGRATION
– Spousal visa – character test – past and present conduct – false and misleading information – arranged marriage – bigamy – seriousness and nature of conduct – likelihood of recidivism – deterrence to others – best interest of children – disregard for Australia’s laws – decision affirmed.
Migration Act 1958 ss. 20, 31, 243, 417, 499, 500 and 501
Migration Regulations 1994 Schedules 2 and 4
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137
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
Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
DECISION AND REASONS FOR DECISION [2003] AATA 254
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/1078
GENERAL ADMINISTRATIVE DIVISION )
Re NAR CHHEANG
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 18 March, 2003
Place: Melbourne
Decision:The Tribunal affirms the decision of a delegate of the respondent dated 10 June, 2002.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 7 October, 2002, the applicant, Mr Nar Chheang, applied for review of a decision dated 10 June, 2002 and made by a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs (“the Minister”). That decision was to refuse Mr Chheang’s de facto wife, Ms Srey Mom Lim, a Subclass 309 Spouse (Provisional) visa to enter and remain in Australia. The delegate did so on the basis that Ms Lim did not satisfy the character test set out in s. 501 of the Migration Act 1958 (“the Act”).
At the hearing, Mr Chheang represented himself and the Minister was represented by Mr Wood. The documents lodged pursuant to s. 500(6C) of the Act (“G documents”) were admitted in evidence. Regard was also had to a letter written to Mr Chheang from Centrelink and another from the City of Whitehorse. Mr Chheang and Ms Lim both gave oral evidence in support of the application. No witnesses gave evidence on behalf of the respondent.
THE ISSUES
There are two issues in this case. The first is whether Ms Lim passes the character test set out in s. 501(6) of the Act. In the context of this case, resolution of that issue requires a consideration of whether Ms Lim is not of good character because of past and present general conduct or because of any past and present criminal conduct. If she does not pass that test, the second primary issue is whether the discretion in s. 501(3) should be exercised to refuse to grant her the visa.
BACKGROUND
Mr Chheang and the Minister were in agreement about the facts in this case. What they did not always agree upon was the way in which those facts should be viewed. In view of this and on the basis of the material in the G documents and the letters submitted by Mr Chheang and after listening to the evidence given by Ms Lim and Mr Chheang, I am satisfied that the facts are those I will now set out. I will return to the way in which they should be viewed later in these reasons:
Ms Lim was born in Phnom Penh in Cambodia on 2 February, 1975. After approximately eight years of primary education, she worked in the markets.
She has brothers and sisters. Two of them live in the United States of America (“USA”) and another lives in a country other than Cambodia. Ms Lim also has brothers and sisters who live in Cambodia. Three live with her mother in Cambodia as does Ms Lim and her four children. They live in a three bedroom house.
In 1994, Ms Lim married Nhum Vutha in a traditional Cambodian wedding ceremony. It was a marriage arranged by their parents. Ms Lim and her husband were not given a marriage certificate but, on the basis of the evidence of Ms Lim, I find that they regarded themselves as married and were regarded as married by the community in which they lived.
On 11 October, 1995, Mr Chheang became a permanent resident in Australia.
On 23 September, 1996, Ms Lim was granted a Subclass 676 Short Stay Visitor visa to enter and remain in Australia.
On 7 October, 1996, Ms Lim entered Australia on a Subclass 676 Short Stay Visitor visa. She was then pregnant with Nhum Vutha’s child and was aware that she was pregnant.
Ms Lim sought an extension of her time in Australia by applying for, and obtaining, a number of Subclass 686 Long Stay Visitor visas.
On 4 February, 1997, Nhum Vutha applied for a tourist visa in order to visit his wife who was giving birth to their child.
On 4 February, 1997, Dr Ley Chea, who was Ms Lim’s general medical practitioner, wrote to a memorandum headed “To whom it may concern” stating that he supported Nhum Vutha’s application to come to Australia to be with Ms Lim at the time of her confinement. Dr Chea later signed a statement dated 4 December, 1998 to the effect that Ms Lim had asked him to prepare the letter for her. He prepared it as he was prepared to provide some assistance to her and gave her a copy.
On 15 February, 1997, a daughter, Cindy, was born to Ms Lim and Nhum Vutha. She already had a child, Panha Vutha, whom she had adopted when he was three months old. Panha Vutha was the child of her cousin.
On 3 October, 1997, Ms Lim married Chamroeun Chevy Morm, and, before the marriage, advised that she was “not validly married” to any other person.
On 28 October, 1997, Ms Lim lodged an application for a visa to remain permanently in Australia on the basis of her marriage to Mr Morm. Mr Morm sponsored her application.
Ms Lim met Mr Chheang at the end of 1997. They met in a park or playground at the flats at which they both lived. At that time, Ms Lim was caring for Cindy.
On 3 February, 1998, after being visited by officers of the Department of Immigration, Multicultural and Indigenous Affairs (“the Department”) and acknowledging that he and Ms Lim did not live together, Mr Morm withdrew his sponsorship of her application for permanent residence. Ms Lim did not notify the Department that she and Mr Morm did not live together.
On 3 September, 1998, Ms Lim’s application for a visa on the basis of her marriage to Mr Morm was refused.
Between 8 October, 1998 and 21 December, 1998, Ms Lim was an unlawful non-citizen.
On 17 December, 1998, Ms Lim was detained by officers of the Department and placed in the Maribyrnong Detention Centre where she remained until 21 December, 1998.
On 18 December, 1998, Ms Lim applied for a protection visa.
On 22 December, 1998, Ms Lim applied for a bridging visa.
On 10 August, 1999, a daughter, Stephanie Chheang, was born to Ms Lim and Mr Chheang. Stephanie is an Australian citizen.
On 22 September, 1999, Ms Lim was summonsed to appear in court on a charge of breaching s. 243(1) of the Act. That section provides that:
“A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of being married to, or being, for the purposes of the regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship.”
The foundation of the charge was that her marriage to Mr Morm was contrived.
On 18 December, 1999, a delegate of the Minister refused Ms Lim’s application for a protection visa. She lodged an application with the Refugee Review Tribunal (“RRT”) for review of that decision.
On 17 February, 2000, Ms Lim was convicted of an offence under s. 243(1) of the Act. She was placed on a bond to be of good behaviour for 12 months.
On 20 November, 2000, Ms Lim told the RRT that Panha Vutha was her cousin’s child, whom she had adopted when he was three months old.
On 12 January, 2001, the RRT released a decision it had made on 20 December, 2000 to affirm the Minister’s decision to refuse Ms Lim a protection visa.
On 16 February, 2001, Ms Lim applied for Ministerial intervention in relation to the RRT’s decision. This was followed by correspondence from her solicitors on 1 May, 2001, 29 May, 2001, 31 May, 2001 and 22 June, 2001.
Between 17 February, 2001 and 14 September, 2001, Ms Lim was an unlawful non-citizen.
On 13 May, 2001, a son, Andy Chheang, was born to Ms Lim and Mr Chheang. Andy is an Australian citizen.
On 7 September, 2001, the Minister declined to exercise his discretionary power under s. 417 of the Act to grant Ms Lim a visa.
On 28 November, 2001, Ms Lim left Australia taking her two children to Mr Chheang as well as Cindy with her.
On 25 May, 2002, Mr Chheang travelled to Cambodia to visit his de facto wife and children. On his return on 4 August, 2002, he brought Stephanie with him.
Mr Chheang is about to return to Cambodia taking Stephanie with him. With the agreement of Ms Lim, he will leave Stephanie with her and return to Australia with Andy.
THE EVIDENCE
Marriage to Nhum Vutha
In giving evidence, Ms Lim said that she married Nhum Vutha in 1994 and then divorced at the end of 1995. She was married in a traditional ceremony and the marriage was arranged by her parents. When asked whether she regarded herself as validly married, she replied that she was married according to Cambodian tradition but it was an arranged marriage and a forced marriage. She did not love him when they married and did not come to love him. When asked whether other people regarded her as validly married, she replied that everybody thought that it was a real marriage. When asked why they did not need a process to divorce if they were married, she replied that, when they find each other, they walk away from each other. In cross-examination, Ms Lim agreed that she had married Nhum Vutha.
When she was divorced, she was one month pregnant. When asked to describe the procedure that was followed to obtain a divorce, Ms Lim said that her husband always walked away from her and did not stay at home. He always caused trouble for her and hit her too. The procedure for getting a divorce was to walk away from each other as they did not marry and did not have a certificate. She said that they could not get a divorce unless they had a marriage certificate. In an interview with an official of the Department in Cambodia in June, 2002, Ms Lim had agreed that a person had to approach a divorce court in Cambodia in order to obtain a divorce. In cross-examination, the telephone line dropped out when she was asked to comment on her previous answer. She did not answer it when the call was resumed and said that the separation had occurred so long ago and that her heart breaks.
Ms Lim said that Nhum Vutha knew that she was pregnant when she left Cambodia. She had heard from a friend that he had applied to visit Australia, she said, but did not know much about it. Ms Lim agreed with Mr Wood that she had seen Dr Chea but that she had done so with her friend. Her friend had arranged the letter written by Dr Chea.
A note from the Australian Embassy in Phnom Penh advised the Department that there is no registry of Cambodian marriage documents. The parties to a marriage could obtain a marriage certificate but only to validate an earlier undocumented marriage. Their marriage would be recognised in the Family Registration Book, which is required to be kept for census, tax and official purposes. All persons in the household must be registered and their relationship to the head of the household is recorded. A Family Registration Book, called a Family Statistics Record, shows Ms Lim as the head of the household, her father and mother, Nhum Vutha as her husband and Vutha Panha as her son.
The marriage of Ms Lim to Mr Morm
After one month, Ms Lim said, she applied for a visa so that she could visit her grandmother in the USA for a month. She then followed that with an application for a visa to visit Australia. When she arrived in Australia, she stayed with a friend. She said that she met Mr Morm when she went to the markets. He asked her, she said, whether she wanted to stay in Australia. If she wanted to stay in Australia, he told her, he could marry her so that she could stay. Later, Ms Lim said that Mr Morm did not ask her to pay any money at first. Afterwards, he told her that he already had a wife and child. She said that she did not love him. She said that she did not offer him any money. He just wanted to help her; he saw that she was pregnant. In cross-examination, Ms Lim said that she had married Mr Morm so that she could stay in Australia. She had no feeling of loving him, she added.
In cross-examination, Ms Lim said that Mr Morm had completed the documents necessary for them to marry. She cannot read and could only answer yes or no to questions that he asked of her. He asked her for details of her date of birth but she did not know if he had asked her if she had previously been married. When she was asked to sign the documents, she signed them. She trusted Mr Morm. He asked her to sign documents when he took pity on her and helped her to live in Australia. She signed the application form. Ms Lim had signed a statement that she believed that the information she had supplied was up to date, complete and correct in every detail and that she understood that her application might be refused or a visa cancelled if she did not give correct information (T documents, page 440). She said in cross-examination that she did not know the serious way in which immigration officials viewed false declarations. Ms Lim rejected the suggestion that she had paid Mr Morm any money in return for his marrying her. The only money that she gave him was to pay the fee of over $1,000 when he lodged the application form for her visa.
Ms Lim said in cross-examination that she was not aware that she could not be married to more than one person at a time. In Cambodia, she said, it is only against the law if she had a marriage certificate from a marriage.
After they were married, she did not live with Mr Morm at all but did not tell the Department of that fact. In reply to a question as to why she had not told the Department, she said that she did not know much about the law. Mr Morm had told her that he would do everything and that she should not worry about anything. She supported herself at this time with money sent by her brother in the USA.
Mr Chheang said that Ms Lim had told him about paying Mr Morm. She had asked Mr Morm how much she would have to pay him to marry her. Ms Lim told him how much she had paid but he is now not sure of the amount. He was not sure if it was a “little or a lot of money”. He did not know whether she had initiated the discussion or not.
Adopted child
In her application, Ms Lim stated that she had four biological children of whom Panh Vutha was one. She sent a copy of a birth certificate to support her application. On that certificate, she was shown as the birth mother of Panh Vutha but she said in cross-examination that she had adopted him. Her solicitor, she said, had told her to “just put like a son”.. When she was asked why she had shown him as her birth child when he was not, she replied that, as she had looked after him since he was a small child, she felt very close to him. When asked why she had provided a false birth certificate for Panh Vutha, she replied that he was already her adopted child and his mother had already died. She had been given the birth certificate in Cambodia to show that he was her real adopted son. In response to a question by Mr Wood as to why she had given the impression that she was the birth mother, she said that the solicitor had asked her to put it like that. She had to follow him.
The children
Mr Chheang said that he brought his daughter, Stephanie, to Australia from Cambodia for two reasons. The first was that his de facto wife found it difficult to care for four children and his daughter needed to go to school. On his return to Australia, Mr Chheang continued to work as he had for the previous seven or eight years. His understanding was that his aunt would be able to care for Stephanie while he was at work. Some time after his return and in approximately October, 2002, his Aunt, who lives with him, told him that she had a job also. The only other relatives he has in Australia are an uncle and a “kind of uncle”. Without the help of his aunt, Mr Chheang felt that he had no alternative but to give up his work to care for his daughter. He is now in receipt of a Parenting Payment from Centrelink.
His reason for bringing Andy from Cambodia in March, 2003 is to enable him to take Andy for his injections. Mr Chheang produced a letter from the Family Assistance Office dated 13 February, 2003 and another from the City of Whitehorse dated 3 February, 2003.. The letter from the Family Assistance Office advised him that it was able to pay him Maternity Immunisation Allowance after Andy is 18 months old and provided he is fully immunised before his second birthday. The letter from the City of Whitehorse advised him that Meningococcal C conjugate vaccine had been added to the National Immunisation Program and that Andy was eligible to have that vaccine free of charge. Mr Chheang did not believe that Cambodia was a place where Andy would receive his immunisation injections. He intends to return to Australia in May, 2003.
Plans for the future
Ms Lim said that all that she wanted was to be reunited with her de facto husband and family. She wanted nothing else. Two of her children are Australian citizens. Her mother has sold her house in Cambodia. It must be acceptable for a person to do some wrong. She just wanted a second chance.
Mr Chheang said that it would be hard for him if he were to live in Cambodia. While in Australia, he has worked in a factory and said that he does not know what work he would do in Cambodia. He was not sure whether he would find work in Cambodia. The amount he would earn for a month’s work in Cambodia would take him a couple of days to earn in Australia. Mr Chheang said that he would only be able to earn $40 per month if he could find work. If he had a degree, he could earn $400 or $500 per month but he does not. It is very hard to care for the children on $40 per month, he said. Even though he agreed with Mr Wood that the standard of living in Cambodia is poor, he felt that he would find it difficult to manage as he has no-one to help him. Others have their parents. Ms Lim’s parents could not assist as her father has already died and her mother is going to stay at the temple. Her brother in the USA was assisting her but would not assist him, he said.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“the Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for any bridging visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate’s decision was made and of this review, criterion 4001 provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.”
Section 501(1) of the Act provides that:
“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:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i)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
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act.
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian people to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community.”
The Direction – good character
The direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). In introducing the directions regarding that paragraph, the Minister states:
“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”
Sections 501(6)(c)(i) and 501(6)(c)(ii) are relevant in this case. In relation to s. 501(6)(c)(i), the Minister directed that:
“1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), the decision-makers should take into consideration the following:
(a)the nature, severity and frequency of the offence/s;
(b)how long ago the offence/s were committed;
(c)the non-citizen’s record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt fort the law; and
(d)any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.”
In relation to s. 501(6)(c)(ii), the Minister directed that:
“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), 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:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b) 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;
(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
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non- citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence with which the applicant has been charged; or
(b)resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”
I will return to the discretion later in these reasons.
The authorities – good character
In this case, part of the focus is upon Ms Lim’s past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon said that :
“‘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.” (pages 154-155)
After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
“These are overall requirements important in the administration of immigration procedures. 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. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which good character does refer in the following passage:
“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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved 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.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321. Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 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 for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so (sic) it is unnecessary to pursue this question.” (paragraphs 8 and 24, pages 324 and 327)
Does Ms Lim satisfy the character test?
Since she has been in Australia, I am satisfied that Ms Lim has been engaged in a course of conduct that has been designed to enable her to remain in Australia but that has been based on a false statement and illegal and/or misleading conduct. In relation to the former, there have been a number of such false statements. The first occurred when she falsely stated that she was not validly married when she married Mr Morm. I am satisfied on the basis of her own evidence that she had been validly married to Nhum Vutha in Cambodia. It was a traditional marriage but there is no evidence to suggest that a traditional marriage in Cambodia was not a valid marriage and, indeed, that it is a valid marriage is supported both by the evidence of Ms Lim and that of the Australian Embassy at Phnom Penh. I do not accept her evidence that she is able to walk away from such a marriage and regard herself as divorced. Instead, I am satisfied that the true position is as Ms Lim said in the interview in Cambodia in 2002. She had to go to a divorce court in order to obtain a divorce. She had not done so and so remained married to Nhum Vutha.
Even if Mr Morm completed the necessary forms, I do not accept that Ms Lim did not know what he wrote in them. She said that he asked her questions and she answered either yes or no. Even if that is the case, he would have asked her about her marital status and, on the balance of probabilities, I am satisfied that she would have told him that she was not validly married or words to that effect. In view of my finding regarding her marriage to Nhum Vutha, she gave him an incorrect answer.
The second statement that Ms Lim is alleged to have made related to Panha Vutha. It is submitted by Mr Wood that she knew that he was her adopted son and yet chose to show him as her biological child in her application for a spouse visa. As he stated that she had shown all four children as her biological children. Those children included Panha Vutha. The question asked her to list “All your children (including from previous marriages/relationships)” (T documents, page 234). She was then asked questions such as whether she had other dependants, whether the children she had listed were in her care and custody and whether any other person had custodial, access or guardianship rights to any of the children. She answered each of those questions in the negative. In her earlier applications, she had shown Panha Vutha as her son. In her application completed on 28 October, 1997, Ms Lim showed Panha Vutha as one of her children and has consistently shown him as either one of her children or her dependant in response to questions seeking that information. There is nothing in the questions that suggests that they are seeking only her biological children. There is no division between biological children and adopted children.
That Panha Vutha is regarded as her son in Cambodia is apparent from the Family Registration Book where he is recorded as her son. In the birth certificate provided by Ms Lim, she is shown as one of Panha Vutha’s parents (T documents, page 303). The parents’ names and ages at the date of his birth is shown as well as at the date of issue of the certificate. There is no evidence that such a certificate is bogus or that its information is misleading. Accepting that Panha Vutha is an adopted child, there is no evidence as to whether birth certificates are issued at birth or whether it is a case where the Family Registration Book is the official record as it is in the case of marriage. It would seem from the record of advice given by the Australian Embassy at Phnom Penh that it is the only record.
Taking all of these matters into account, I do not accept that Ms Lim has made any false claim in relation to Panha Vutha. As an adopted child, he may properly be described as one of her dependents or one of her children. On the limited evidence that I have as to the recording of marriages and of family relationships in Cambodia, I do not find that the birth certificate is a forged document or a document that is false.
That brings me to Ms Lim’s conduct. I am satisfied on the basis of her own evidence that Ms Lim entered the marriage with Mr Morm so that she could remain in Australia. There was no other reason for her to do so. She did not love him and did not live with him. Consistent with her intention to use the marriage to enable her to stay, I am satisfied that she did not advise the Department that she had separated from Mr Morm immediately after she had married him.
I am also satisfied that she remained in Australia without a visa between 8 October, 1998 and 21 December, 1998 and between 17 February and 14 September, 2001. She did so on the first occasion after her application for a visa on the basis of her marriage to Mr Morm had been refused. On the second occasion, she did so after her application for a protection visa had been refused.
I am satisfied that Ms Lim has engaged in the course of conduct and made the statements I have set out above in order to improve her life and that of her children. It is understandable that she would want to put the best interests of her children above her own but, in doing so, she has shown a disposition to disregard the laws of the country where she seeks to raise her children and live with her de facto husband, Mr Chheang. In the circumstances, the words that I said in Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 are equally applicable to Ms Lim:
“54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia’s migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows …”
In this case, Ms Lim is a mother and a wife to Mr Chheang, albeit in a de facto sense. Mr Chheang clearly cares deeply for her and all that she wants is to be reunited with him and to have all of the children together. From this, I am prepared to find that she is a good wife and mother. Those traits, however, do not outweigh her disregard for Australia’s laws and I find that she is not a person of good character. She does not pass the character test.
The Direction – the discretion
Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:
“… note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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.” (paragraph 2.2)
44. 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 relationship between a child or children and the person under consideration, the best interests of the child or children.” (paragraph 2.3)
The Minister then deals with each primary consideration in turn. He began his consideration of the first consideration with a general statement that:
“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. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.” (paragraph 2.4)
The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Ms Lim’s conduct; the likelihood that she will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of Ms Lim’s conduct, is the statement that I must have regard to:
“(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.” (paragraph 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Ms Lim as mitigating factors (paragraph 2.8(a)).
Regard must also be had to the likelihood that Ms Lim’s conduct may be repeated. The Direction states that a person’s previous general and criminal history are highly relevant to assessing the likelihood of committing an offence. Among other factors that are relevant is the extent of rehabilitation that has already been achieved and that can be expected in the future.
The third limb that is relevant in considering the protection of the Australian community. Paragraph 2.11 states that:
“General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.” (paragraph 2.11)
Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (paragraph 2.12)
In relation to the third primary consideration, the Minister stated that, in general terms, a child’s best interests are served if he or she remains with its parents. Countervailing considerations to which he refers are not relevant in this case. The matters to which the Minister has directed a decision-maker’s attention in considering the best interests of the child are:
“(a) the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen’s prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.” (paragraph 2.16)
In looking at the best interests of the child, regard must also be had to the High Court’s judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353. (Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child (“the Convention”) in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:
“Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. …
Article 9
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.…
4.…
Article 18
1.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2.For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …
3.…”
The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:
“No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as ‘a primary consideration’.. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.” (page 365)
The Direction then goes on to deal with other considerations that are to be given less weight than is given to the primary considerations. They include such matters as the extent of disruption to the non-citizen’s family, business and other ties in the Australian community, interdependent ties that he or she has with an Australian citizen or permanent resident and the degree of hardship that would be caused to immediate family members of the non-citizen if he or she were not permitted to remain in Australia. Also relevant is evidence of rehabilitation and any good conduct.
Should Ms Lim not be refused a visa on the basis of her not passing the character test?
Ms Lim’s actions in entering Australia were not consistent with the public good in so far as the administration of its immigration laws are concerned. She knew that she was pregnant with her child, Cindy, at the time. I do not accept her explanation that her husband, Nhum Vutha, tried to obtain a visitor visa to see her without her knowledge or agreement that he try to do so but prefer the evidence of Dr Chea. The letter from Dr Chea suggests that Nhum Vutha’s presence is required to support Ms Lim during her confinement. His statement is that he wrote it at Ms Lim’s request and that is consistent with its tone. I find, therefore, that Ms Lim wanted Nhum Vutha to come to Australia to be with her while she gave birth. Her effort to assist him by obtaining the letter of support combined with her extension of her visas to remain in Australia, indicate her initial intention to give birth to her daughter in Australia. This is not necessarily a poor choice if her own interests are the focus of concern. Her choice, however, reveals what could be viewed as the first step in a process in which she tried to remain permanently in Australia. This was contrary to the spirit of a visitor’s visa that she obtained to enter Australia.
Ms Lim’s action with regard to the birth of her daughter could have perhaps been viewed more benignly had it not been for her subsequent actions in marrying Mr Morm. She did so while she was still married to Nhum Vutha and misstated her married state in entering that marriage. It was a bigamous marriage. Not only was it bigamous, it was entered purely for the purpose of obtaining a right to remain in Australia. She did not remain with Mr Morm. Furthermore, she did not report her separation from Mr Morm to the Department. In doing so, she did not comply with her obligation, which is an obligation that she acknowledged in writing, that she would give the Department correct information. For part of her time in Australia, she was without a visa and so was unlawfully in this country. These are serious matters.
Her conduct shows a continuing disregard of Australia’s migration laws. Her disregard does not centre, for example, on one untruth or contrivance that must be maintained. Instead, there has been a series comprising three untruths and/or contrivances. This suggests that she is a person who will disregard not only Australia’s migration laws but perhaps its laws generally if it is in her own interests to do so. There is no evidence to show that she has disregarded any of Australia’s general laws or is likely to but, in my view, too little time has passed to show that she is a person who has changed her ways and will not in the future disregard the law if it is in her own interests.
Whether or not refusal of a visa to Ms Lim will deter others from engaging in similar behaviour is always a difficult issue. If her visa is to be refused on character grounds, there is no indication in the evidence as to how widely known that fact would become either in Australia or in Cambodia. Refusal can only be a deterrence if it becomes known and I cannot take the matter any further.
In the circumstances, I have reached the conclusion that the Australian community would expect that Ms Lim not be permitted to come to Australia. It may be that its expectation would change at a later time as Ms Lim shows that she is prepared to abide by the law.
I accept that Mr Chheang has a loving relationship with Ms Lim and that they have two children, both of whom are Australian citizens. Mr Chheang is a permanent resident of Australia and he currently has care of one of their children. If Ms Lim is not permitted to reside permanently in Australia, it is not clear what Mr Chheang and Ms Lim would do. Based on their plans to take Stephanie to Cambodia and for Mr Chheung to return to Australia with Andy, it is open to conjecture that they may choose to take the children to and fro between Cambodia and Australia. It is equally open to conjecture that Mr Chheang may decide to return to Cambodia to live.
It could be thought that the children’s best interests lie in being with their siblings and with both their parents. That is a state that could be achieved by permitting Ms Lim to travel to Australia but, equally, it could be arrived at by Mr Chheang’s moving to Cambodia. I accept that if he were to do so, he would find it difficult, if not impossible, to find employment that paid at the level he previously enjoyed in Australia. On the basis of Mr Chheang’s evidence that the standard of living in Cambodia is poor, I think that it is reasonable to assume that the standard of living for the family would be poorer in Cambodia than in Australia were the choice made for them to live in that country. That the standard of living is poorer in one country than another is not necessarily determinative of what is in a child’s best interests. Both Stephanie and Andy are young and adaptable. Neither has started school and there is no evidence that either has any particular health needs that would not be attended to in Cambodia as in Australia. The issue of Andy’s immunisation will be addressed by Mr Chheang during March in any event when he brings him to Australia.
Taking all of these matters into account, I have decided that the factors relating to the protection of the Australian community outweigh those relating to the interests of Ms Lim, Mr Chheang and their children. It follows that the balance in exercising the discretion under s. 501 against my finding that Ms Lim’s visa should be refused on the basis of her character.
For the reasons I have given, I affirm the decision of a delegate of the respondent dated 10 June, 2002.
I certify that the sixty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ................................................................
P. Paczkowski Associate
Date/s of Hearing 20 February, 2003
Date of Decision 18 March, 2003
For the Applicant selfSolicitor for the Respondent Mr D. Wood,
Blake Dawson Waldron
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