Chheng and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 26
•5 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 26
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/255
GENERAL ADMINISTRATIVE DIVISION ) Re SOK MAY CHHENG Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date5 January 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
[sgd] R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa subclass 309 – character test – provision of false and misleading information – importance of truth when dealing with migration officer – stratagem put in place to deceive migration officers – evidence as to financial position not accepted – incorrect information in Book of Residence and Family Book – not of good character - whether to exercise discretion –visa applicant seeking to mislead – expectation of Australian community – best interests of child overridden by other conditions – decision affirmed
Migration Act 1958
Ministerial Direction 21Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 8
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648
REASONS FOR DECISION
5 January 2005 The Hon R N J Purvis Q.C., Deputy President the application
1. On 5 February 2004, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) refused to grant Mr Vuthy Leng (“the Visa Applicant”) a provisional spouse (subclass 309) visa on the ground that he did not pass the character test provided for by section 501 (6) of the Migration Act 1958 (“the Act”). The statutory discretion available to the Respondent was not exercised in the Visa Applicant’s favour.
2. The Visa Applicant is the husband of Ms Sok May Chheng (“the Applicant”) who, on 24 February 2004, made the subject application to the Tribunal for review of the Respondent’s decision.
3. In the reasons for its decision to not grant the visa the Respondent, amongst other matters, stated (T2 pp10, 12, 13):
“…
26. I find that Mr LENG Vuthy was not truthful in his dealings with the Department with respect to his previous tourist visa application. I have taken into account the considerable resources that were deployed to resolve Mr Leng’s applications. Mr Leng has displayed no remorse for his action and I find that the applicant’s general conduct demonstrates a blatant disregard for Australian immigration laws.
27. Having regard to Mr Leng’s past and present general conduct and based on the evidence before me I find that Mr Leng is not of good character in relation to his past and present general conduct and as such fails to satisfy me that he passes the character test.
28. Whilst it is unfortunate that Mr Leng remains in Cambodia and Ms Chheng and their daughter reside in Australia, this situation is a migration choice made by the applicant and his wife. When Mr Leng and Ms Chheng decided to marry and have a child, they did so knowing there was no guarantee that Mr Leng would be granted a visa to Australia. Ms Chheng is a Cambodian citizen with the freedom to move to Cambodia as she wishes, and there is no impediment to her returning to Cambodia with her daughter to live with Mr Leng.
…
(ii) Mr LENG Vuthy has made false and misleading statements to the Department. His travel visa application, based on information and documentation he provided, contained false and misleading declarations. This is an offence under the Migration Act 1958 and if convicted, the penalty exceeds 12 months imprisonment.
…
(c)general deterrence
Mr Leng’s previous application is only one of many from Cambodian applicants who have wilfully abused the migration system by lodging applications under false identities. Mr Leng’s conduct is not uncommon in the caseload at this post and in fact is often repeated by others…
The Expectation of the Australian Community
…
While not denying Mr Leng’s right to apply for a temporary or permanent visa, he previously applied in the full knowledge, and with complicity, that he was doing so with bogus claims and documentation. He compounded this by failing to notify the Department or other parties of this fact despite having ample opportunity to do so.
…
The Best interests of any Child(ren)
Mr LENG Vuthy and Ms CHHENG Sok May have one child, Ms Carlista Leng, an Australian citizen. This child is in Australia with the sponsor. Ms Chheng retains her Cambodian citizenship and there is no impediment to her and her daughter returning to Cambodia to live with her husband. Whilst I consider Mr Leng’s child would possibly gain access to improved health care and education if she remained in Australia, I do not consider it is significantly against her best interests if Mr Leng’s visa is not granted and his wife and daughter decide to relocate to Cambodia.
Other Considerations
Mr Leng is being sponsored by his spouse Ms Chheng and given that they have a daughter, I accept that refusal to grant a visa may be distressing for both parties.
There appears to be no bar to Mr Leng and his sponsor residing in Cambodia with their daughter as a family.
Mr Leng’s mother, Ms Heng Eng, resides with him in Cambodia and is included as his dependent in the application. I accept that given Ms Eng’s age a refusal to grant a visa may be distressing; however she lives under the care of her son in circumstances similar to many other elderly Cambodians. No immediate relatives reside elsewhere overseas.”
the hearing
4. At the hearing of the application the Applicant was represented by Mr Kerry Murphy, solicitor of Craddock, Murray, Newman Lawyers and the Respondent by Mr Murray Allatt, a solicitor employed by the Australian Government Solicitor.
5. The documents lodged by the Respondent with the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, were admitted into evidence and marked T1 to T32. Written material tendered on behalf of the Applicant was admitted as Exhibits and marked accordingly:
Exhibit No
Description
Date
A
Statement of Sok May Chheng as fax dated
30 July 2004
B
Statement of Vuthy Leng
17 August 2004
C
Print out Travel Advice for Cambodia from the Department of Foreign Affairs and Trade
13 August 2004
D
Print out Core health indicators, life expectancy, child mortality, adult mortality, per capita government expenditure
13 August 2004
E
Aus Aid (2) Country Programs print out
13 August 2004
F
Caritas Australia print out
18 August 2004
G
Photographs of Applicant, Visa Applicant and daughter
H
Letter of Mr Murphy together with statement of Mr Vuthy Leng
3 December 2004
6. The Applicant and Visa Applicant both gave evidence by use of a Khmer interpreter upon which they were each cross-examined.
chronology of relevant events
7. The Applicant and the Respondent, in their statements of facts and contentions, detailed a history of events significant to each of their cases. Having reviewed the statements, I am satisfied that a time line of relevant events not at issue is as follows:
1972, 5 May Visa Applicant was born in Cambodia
1975, 20 June Applicant was born in Cambodia
1990, 22 February Applicant and Visa Applicant attend and meet at the same High School in Phnom Penh, Cambodia
1993, 12 October Applicant marries Vinh Huy Poeng in Cambodia
1994Applicant being granted a spouse visa joins her husband in Australia
1996, 13 November Applicant granted Australian citizenship
1997, 21 July Applicant and first husband divorce
1998, 19 February Tourist Visa application lodged in Cambodia in name of Visa Applicant
1998The application for a tourist visa refused
2000, 21 June Applicant returns to Cambodia
2001, 15 December Applicant and Visa Applicant married in Cambodia
2002, 5 June Applicant and Visa Applicant lodge spouse visa application dated 20 May 2002 with Australian Embassy, Phnom Penh. Application includes an application for the Visa Applicant’s mother.
2002, 10 August Applicant leaves Cambodia and enters Australia
2002, 10 December Daughter Carlista Leng born to Applicant in Australia
2003, 27 June Officers of Respondent conduct house check in Phnom Penh
2003, December Applicant travels to Cambodia with daughter
2004, 5 February Application for spouse visa refused
the issues
8. The issues for determination in this application primarily relate to the character of the Visa Applicant. The Visa Applicant’s credibility is a central issue. In the event of his being found to be not of good character, it is necessary for the Tribunal to consider whether the discretionary considerations available to it should be exercised in his favour.
legal provisions and direction
9. The provisions of the Act here relevant are:
“501 (1) Refusal or cancellation of visa on character grounds
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i)…
(ii) the persons past and present general conduct
…
the person is not of good character.
499 Minister may give directions)
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about
(a) the performance of those functions; or
(b) the exercise of those powers.
(2A)A person or body must comply with a direction under subsection (1).”
10. The words “good character” as used in section 501 of the Act:
“should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as fact, where the latter is a review of subjective public opinion”.
(See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94)
11. It is not necessary for there to be a continuance of the incidence of general conduct. It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying “the character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).
12. The Ministerial Direction 21 (“the Direction”) sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test. One factor to be taken into account, as here relevant, is whether the Visa Applicant has shown contempt or disregard for the law including Immigration Law (paragraph 1.9 (a) (b)). Thus Paragraph 1.9 (b) requires consideration to be given to:
“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.”
13. If the Tribunal is not satisfied that the Applicant passes the character test, the issue for determination, as already indicated above, is whether the decision of the Minister’s delegate be affirmed or set aside by exercise of the residual discretion under section 501 (1) of the Act. In making this determination the Tribunal is to have regard to the abovementioned Direction and as here relevant to the following provision:
“PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test,
decision-makers must have regard to the following considerations when
exercising the discretion to decide whether or not the non-citizen
should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of
important factors in reaching a decision whether or not to refuse or
cancel a visa. In making such a decision, a decision-maker should
have regard to three primary considerations and a number of other
considerations. The primary considerations are set out at paragraphs
2.3 - 2.16 and other considerations are set out at paragraphs 2.17 -
2.24. 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.”
14. The three primary considerations that must be taken into account by decision-makers are: the protection of the Australian community, the expectations of the Australian community and 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.
15. With reference to the protection of the Australian community the Direction provides that the factors relevant to an assessment of the level of risk to the community of the entering or continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as much as does the character issue, specifically refers to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.
16. The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648). It is conceivable that documents can be false and information provided which is false without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information and as to whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage. As was stated in Irving (supra) the moral qualities of a person are the factors to which attention is to be given.
factual situation and findings of fact
17. Both the Applicant and Visa Applicant were born and raised in Cambodia. The Applicant is one of three children, her brothers and her parents live in Phnom Penh, Cambodia. The Visa Applicant was also one of three children. However, his father and his two sisters were killed at the time of the Pol Pot regime. The Visa Applicant is presently living with his mother in a residence owned by him and his mother in Phnom Penh.
18. The Applicant and Visa Applicant attended the same high school and it was there that they first became acquainted and formed a close friendship. There is a three year difference in their ages and this resulted in a two year difference in the classes they attended. The Visa Applicant was the first to complete secondary school studies and, according to the Applicant, went on to University although there is not any evidence of his having graduated. According again to the Applicant, the closeness of their friendship then waned.
19. In 1993, when the Applicant was only 18 years of age, she was, further to an arrangement made between her parents and those of her prospective husband, married in Cambodia to a Cambodian national who had obtained Australian citizenship. One year later she was granted a spouse visa to enter Australia. She did so but only remained living with her husband for about two years, obtaining a divorce from him on 21 July 1997. The Family Law Act stipulates a period of separation between parties of 12 months before an application for divorce can be filed. Be this so the Applicant applied for and was granted Australian citizenship, presumably on the ground of her being married to an Australian citizen, on 12 November 1996 at which time she would, if her Family Law Act application was based on a true state of affairs, have been separated from her husband.
20. The Applicant said that following her first marriage she wrote occasionally to the Visa Applicant. During the year in which she obtained her divorce the Applicant, according to the Visa Applicant, contacted him both by letter and by telephone and it was then, according to him, that he learned about the divorce. The Applicant at first maintained that she did not make contact for “one or two years” after the divorce but later in her evidence agreed that it was in 1997.
21. During the course of discussions in 1997 the Visa Applicant indicated to the Applicant that he would like to visit Australia. The Applicant agreed that this was so, that he talked with her about coming to Australia to look for business opportunities (he is a seed and fertilizer retailer) but that marriage was not at that time discussed. The Visa Applicant made contact with a lady in Phnom Penh, known as Srey, who told him that she had “ability to help people obtain visas to come to Australia”. He had three meetings with Srey during which she told him about the documents she would require in order to obtain the visa. He needed to have someone who would sponsor the visit. The Visa Applicant obtained a letter from the brother of the Applicant’s then ex husband, Mr Tien Hui Poeung, who was also resident in Australia, to this effect. The Visa Applicant said that the brother had been in the same year as himself in high school. He gave Srey a photo or photos of himself. He gave her particulars as to his date of birth but denies he gave her his address even be it one of the meetings took place at his home. He paid her money. She had said that carrying out the work associated with and obtaining the visa would cost US$2000, of which amount he paid, he said, about US$250.
22. There were other documents that the Visa Applicant gave to Srey. Srey told him of the difficulties in obtaining a visa but said she was a specialist. She also told him that he would have to convince the Australian authorities that he had good reason for returning to Cambodia; that he had strong connections with the country. He says that she did not tell him how she was going to convince the authorities, “I was leaving that to her” he said. “I did not care; all I wanted was a visa”.
23. An application for a visa in the name of the Visa Applicant was lodged with the Respondent in Phnom Penh on 19 February 1998. The Visa Applicant says that he did not know of it being lodged and that he ceased instructing Srey when he saw, on television, a news coverage of her having been arrested for home theft. Although the application bears a signature the Visa Applicant denies that it is his. His date of birth and address as shown on the form are incorrect. He is said to have had US$10,000 to pay for air tickets to and maintenance in Australia. He denies telling Srey this fact.
24. In his evidence given before the Tribunal, the Visa Applicant denied having, at the time he spoke to Srey, any money saved and said that he did not commence conducting his own business until the end of 1998. Yet he was prepared to pay Srey US$2000 and fund his return air fare to Australia and support himself whilst he was to be in Australia.
25. An identity card was provided to the Respondent in support of the application. The Visa Applicant’s date of birth and address as stated on the card are incorrect, the latter only as to the street number. Other information on the card was correct. The Visa Applicant denies giving Srey the identity card with the false information on it. It was dated 15 May 1989 and purportedly signed by a director of police. A family book dated 5 April 1996 was provided to the Respondent also in support of the application.
26. The family book contained a section for detailing “statistics of family”, in which the names of the Visa Applicant’s wife “Sok Savath” and his ” daughters” Leng Chan Socheat and Leng Chanvatey are entered. The Visa Applicant says that he was not at the time married and did not have then any children. In addition the section of the book shows his occupation as “tailor”, which he was not. The document and most of the information contained in it was false. A “savings passbook” of the Agriculture and Commercial Bank of Cambodia Limited in the name of the Visa Applicant was also made available to the Respondent showing United States Dollar transactions through 1997 and to the 13 January 1998 with a then balance of US$35,770. The Visa Applicant now says he did not have an account with this bank and did not have the monies in the account as stated. A withdrawal of US$2000, an amount equivalent to the fee agreed to be paid to Srey, was shown to have occurred on 8 December 1997 about the time the Visa Applicant gave instructions to the agent.
27. On the basis of the evidence before the Tribunal, I am satisfied that the identity card, the family book and the savings passbook were each false and had been created with the intent of being provided to the Respondent in support of the Visa Applicant’s visa application. I see no good reason why Srey would cause the false documents to be manufactured or created in the absence of instructions from the Visa Applicant and, more particularly so, if monies sufficient to cause the false documents to be prepared had not been paid to her by the Visa Applicant. Even if the Visa Applicant was not aware of all of the details contained in the documents, I am satisfied that he was aware of a stratagem being put in place in order to endeavour to persuade the Respondent to grant the visa. The application was in due course refused by the Respondent.
28. Following her divorce in 1997 and the refusal to grant the visitor visa to the Visa Applicant in early 1998, the frequency of the telephone and letter contacts between the Applicant and the Visa Applicant increased until by 1999 according to the Applicant “we contacted each other a lot”. In June 2000, the Applicant returned to Cambodia where she lived with her family until she married the Visa Applicant on 15 December 2001. She remained living with her husband and her mother-in-law until August 2002 when she travelled to Australia in order to there give birth to a daughter in December 2002. The Applicant says that she came to Australia to have her child being worried that “they may not allow the daughter, once born, to come to Australia with me”. In December 2003, the Applicant again returned to Cambodia, this time with the daughter, and lived with her husband and her mother-in-law until she returned to Australia, this time leaving the daughter in Cambodia with the Visa Applicant. The Applicant again returned to Cambodia, travelled to Australia following refusal of the subject visa application in February 2004, returned to Cambodia in March 2004, came back to Australia, returned to Cambodia in July 2004 and came back to Australia in October 2004. The Visa Applicant has arranged for a second maid to live in his house in Phnom Penh in order to look after the daughter when she is there in Cambodia with him.
29. On 5 June 2002, the Applicant and Visa Applicant lodged their application for the Visa Applicant to migrate to Australia. In the application it was said that the Visa Applicant intended to bring “money, goods and assets” to a value of A$100,000 to Australia. The Applicant in a statutory declaration of 17 May 2002 (T5/103) also recited that her husband had assets “worth over A$100,000”. Yet the Visa Applicant now says this was wrong. “The comma must have been put in the wrong place” he said but then later in his cross examination indicated he had US$100,000 in 1998, not including his house and in 2002 assets totalling $150,000 and yet again “over US$100,000 without selling his home and other assets to bring to Australia”. The Visa Applicant’s evidence as to his financial position is not able to be accepted and relied upon.
30. In a Book of Residence dated 23 May 2002 (T5/110) presented to the Respondent in support of the 2002 visa application a schedule of ”Statistic of Family and Dependants” appears, listing the people then resident in the Visa Applicant’s home together with, amongst other particulars, their occupation as of 26 June 1999. The occupation of the Visa Applicant’s mother is stated as “trader” as is that of a niece. The mother had not been involved in the Visa Applicant’s seed and fertilizer business for some years. The niece was a student. Each description was incorrect. But that of the Visa Applicant is stated as “Government official”. When questioned about the entry relating to him the Visa Applicant at first said that he “used to be such an official” but “I did not survive and came back to business”. Later he said “after school I was to work for the government but I did not do so and went into business”. Later again he said “in fact I did not work for the government”. Again he said “I have temporarily suspended my work from the ministry…the salary for civil servants are low…which has inspired me to choose business instead”. He said he is now earning by way of profit from his business an amount of US$20,000 a year. The salary of a civil servant he said is US$35 per month.
31. Again I am not able to accept the evidence of the Visa Applicant as it relates to the activities in the Book of Residence and his being now or at one time a civil servant.
32. The Visa Applicant said at first that he had not seen the Family Book for a long time and that he only used it when he needed to. He needed it when applying for a visa. The Visa Applicant was responsible for the entries made in his mother’s Family Record Book, where his mother’s occupation, at 25 May 2001, is noted as “seller at home” and his own as, at that date, “Kann control officer Ministry of Commerce”. This was also false. In due course and after further cross-examination the Visa Applicant revealed that the reason for misrepresenting the occupations was in order to mislead government officials and also in order to enhance his standing “when you say you are working for the government it gives a good impression” and so “I continue saying”. “When I say I work for the government, it gives me more standing and credibility than being a successful businessman”. But further “if I use government employment we can get cheaper water and electricity”. He acknowledged he was getting something to which he was not entitled.
33. As with the 1998 application for a visa so with the 2002 application, the Visa Applicant, with intent to mislead, presented a family record book which was demonstrably false.
the alleged scheme to enter and remain in australia
34. There is much to be said in support of the position taken by the Respondent namely that the Applicant, Visa Applicant, the Applicant’s first husband and that husband’s brother conspired together to have the Applicant enter Australia as the wife of an Australian resident – the marriage being “arranged” by the parents but she still had “feeling” for the Visa Applicant – obtain citizenship herself, divorce her first husband – the urgency is shown by the Applicant obtaining citizenship in November 1996 when she says she was separated from her husband preparatory to obtaining a divorce from him in 1997. One might well ask if there was no scheme why the urgency in obtaining citizenship and the dissolution of her marriage – marry the Visa Applicant and then have an application made for her second husband – her real intended husband “my first lover” (T2 /201) – to also enter Australia. Other than for the denials of the Applicant and the Visa Applicant the facts also support there having been “a long-term well planned migration fraud” perpetrated by them. The Visa Applicant by his 1998 visa application following the Applicant’s divorce intended to then enter Australia and in all likelihood then marry the Applicant. This stratagem was foiled when the application was refused. The subsequent time spent in Cambodia by the Applicant, her marriage there and the birth of the child in Australia may all have been in furtherance of the original plan.
character of the visa applicant
35. I am satisfied that the Visa Applicant is not of good character. His evidence is resplendent with inconsistencies and contradictions, ranging from when he was told of the Applicant’s divorce to his alleged occupation as a government employee.
36. The Visa Applicant did retain the services of Ms Srey to obtain a visa, leaving Ms Srey to make the necessary arrangements; “I did not care” he said “all I wanted was a visa” . He was a party to the provision of false information to the Respondent both in 1998 and 2002. He was not truthful in recounting the actual continuing relationship between himself and the Applicant nor about his intent in 1998 in seeking to obtain the visa. He was not truthful when detailing his assets or in reciting his occupation to police for the purpose of the family record books and in presenting the books of himself and his mother in support of the 2002 visa application.
discretionary considerations
37. I have, earlier in these reasons, detailed the conduct of the Visa Applicant over a lengthy period of time and until recently, in relation to the current application, which disclose that he is not of good character. His improper conduct was serious. He sought to mislead the Respondent by use of fraudulent documentation and misrepresentations made in his applications. In relation to his 1998 application, he was a party to allowing any means available being used in order to obtain the visa. He knew or ought to have known that material he provided was to be used to this end.
38. As earlier stated in these reasons, the Direction specifically refers to conduct involving the making of false or misleading statements in connection with the obtaining of a visa to enter Australia. The Act itself makes provision for sanctions being imposed on those found to have committed acts or engaged in conduct which constitutes an offence. There is an obligation resting on all those who seek to be allowed to enter Australia. There is an obligation to be truthful when dealing with officials in migration matters especially, it may be said, when the truth is known only to the person making the statement. The conduct of the Visa Applicant in relation to the 1988 and 2002 visa applications was in itself serious but equally so was his conduct in the way in which he sought to mislead the Tribunal when giving his contradictory evidence. The Tribunal experiences difficulty in accepting evidence given by the Visa Applicant in the absence of its being corroborated from another source.
39. It is true, as was submitted on behalf of the Applicant, that the Visa Applicant has not been convicted of any offence. However, he was instrumental in having material submitted to the Respondent in 1998, which he knew or ought to have known was or would be incorrect and misleading. I am satisfied that the Visa Applicant did authorise or instruct the agent to lodge the application. Indeed I am satisfied that the lodging of the application was a necessary step in the overall scheme enabling the Visa Applicant to enter Australia.
40. The use by the Visa Applicant, of Ms Srey knowing that she was to use such means as she considered necessary to enable a visa to be granted is in itself conduct which is unacceptable to the Australian community. It is apparent from the material before the Tribunal that the Respondent used such means as were at its disposal in an endeavour to obtain confirmation of the position maintained on behalf of the Visa Applicant. Refusal of a visa in the present circumstances may well warn others to avoid using a person such as Ms Srey and engaging in unacceptable conduct.
41. As already stated the conduct of the Visa Applicant extended over a lengthy period of time and there is not any reason to believe that he would not engage in similar conduct if the opportunity presented itself in the future. He has demonstrated an ability to prevaricate and seek to mislead the Tribunal with the evidence he gave before it.
42. It was submitted on behalf of the Applicant that the Australian community would expect the Act to be administered fairly and humanly. The Tribunal agrees with this submission. It is in this context that the Tribunal is satisfied the community would expect an honest applicant and an applicant putting forward an application truthfully detailing relevant facts, to be afforded a position more favourable to that propounded by a visa applicant who seeks to mislead.
43. There is no issue in this application that a genuine relationship exists between the Applicant and the Visa Applicant. It is accepted that in the event of a visa being refused the Applicant may have to abandon her life in Australia and return to Cambodia with her daughter and there live with her husband and mother-in-law, even be it, as will be discussed shortly, the circumstances in which the family will live in Cambodia may not be consistent with those existing in Australia. Health and education facilities may not be equivalent to those in Australia, nevertheless the Visa Applicant on the evidence he has placed before the Tribunal is and will be able to maintain his family at a comfortable standard of living. He has already made provision in his household for a person to be there employed to assist the Applicant in caring for the daughter.
44. The Applicant is not being forced to leave Australia by reason of a visa being refused to her husband in fact it was she who left Australia to marry in Cambodia and to there conceive their child. At this time there was no certainty that the husband would be granted a visa to enter Australia. It is a lifestyle that was chosen by the Applicant and the Visa Applicant. I am satisfied that the Australian community would not expect the Visa Applicant in all the circumstances of this matter to be rewarded with the grant of a visa.
concern for the welfare of the daughter – her best interests
45. Both the Applicant and the Visa Applicant have residents’ rights in Cambodia. They are Cambodian citizens. The daughter is an Australian citizen. The Applicant maintains “that the Australian community would expect an Australian child to have access to Australian standards of health care and education and to be able to live in Australia with her parents”. Information provided by the World Health Organisation and other relevant bodies, instances the health factors peculiar to Cambodia and Australia. It is said that the daughter would face great disadvantage if she is required to live in Cambodia compared to her living in Australia.
46. The Applicant maintains that it is in the best interests of the daughter for her to live in Australia, this on account of Cambodia being “a dangerous place”. The Applicant says that she would prefer the daughter to study in Australia “to go to school here for good education”. She also says that the health system is preferable in Australia and complains of mosquitos worrying her in Cambodia.
47. The Tribunal had before it a “travel advice” issued by the Australian Department of Foreign Affairs and Trade, Core Health Indicators issued by the World Health Organisation and a summary of human development standards all referrable to Cambodia. From a reading of this material it is apparent that Cambodia is a relatively poor country with deficiencies in the provision of health care and education, this particularly in the rural areas. Poverty reduction has occurred in Phnom Penh and provincial towns.
48. Both the Applicant and Visa Applicant completed their secondary education in Cambodia, the Visa Applicant proceeding on to university. The Visa Applicant has his own business and the assistance of two maids to care for himself, his mother, the Applicant and the daughter when they are in Cambodia. They live in Phnom Penh as does the Applicant’s parents and brothers. The Visa Applicant possess assets, cash and property; worth on his own estimate not less that US$150,000. His income is said by him to be 50 times that of a civil servant.
49. I do not consider that the welfare of the daughter would be overly adversely affected if she should reside with her father and mother in Phnom Penh. She may, well undergo a part of her education in Australia.
hardship
50. In the event of the decision under review being affirmed the Applicant will experience some hardship. It is the intent of the Visa Applicant that his 74 year old mother should accompany him if he be allowed to enter this country. Otherwise they will remain living in Phnom Penh. The Applicant and her daughter will more likely than not return to Cambodia to live with the Visa Applicant, travelling to Australia and probably arranging for the daughter to receive at least some of her education in this country. As her parents and siblings are in Cambodia she will have good reason to remain there for lengthy periods, this as she has done in the past.
other considerations
51. On behalf of the Applicant, the Tribunal’s attention was drawn to the fact that the subclass 309 provisional spouse visa sought by the Visa Applicant is a two year temporary visa and that even if granted the Visa Applicant will be required to establish the necessary prerequisites to a renewal of such visa in that time. The character of the Visa Applicant, it is said can again be considered by the Respondent and the fears of recidivism raised can then be assessed. This is true. However, there is a statutory obligation imposed upon the Tribunal, by the Act and the Direction to consider the situation as it now is. Even be it the visa is temporary, this is only one factor that is to be taken into consideration.
conclusion
52. I am satisfied on the basis of the evidence placed before the Tribunal that the Visa Applicant is not of good character. I am satisfied that his misconduct was of a serious nature and not such as would be condoned by the Australian community. I am satisfied that there is a likelihood that the Visa Applicant would seek to avail himself of opportunities presented in aid of obtaining an advantage for himself even if such a course would entail the making of false representations or avoiding the making of truthful statements. Refusal of a visa might well encourage potential applicants to be honest and forthright in their representations. The Tribunal appreciates the primary consideration referrable to the best interests of the daughter. I am not satisfied however that this consideration outweighs the other considerations necessarily to be taken into account in reaching the discretionary decision.
53. It is true, as maintained on behalf of the Applicant, that there should be an expressed intent to maintain the family as a natural and fundamental group unit of society. In this matter there is no impediment to the family residing together in Cambodia. The Visa Applicant is well able to afford to maintain his family at a comfortable standard of living, they being well cared for in the Cambodian society.
54. For the reasons set forth above I am satisfied that the decision under review should be affirmed. Accordingly the decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: A Krilis
.....................................................................................
AssociateDate/s of Hearing 18 and 19 October 2004, 13 December 2004
Date of Decision 5 January 2005
Solicitor for the Applicant Mr K Murphy
Solicitor for the Respondent Mr M Allatt
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