Chim and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 1340

DECISION AND REASONS FOR DECISION [2002] AATA 1340

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2002/479

GENERAL ADMINISTRATIVE DIVISION       )
           Re      VITH CHIM
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

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

Date19 December 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
   [Sgd S P Estcourt QC]
  Deputy President
CATCHWORDS
Immigration - spouse visa - whether applicant fails to pass the character test - past general conduct - false and misleading information - whether discretion should be exercised - Direction No 21 - genuine marriage to an Australian citizen - best interests of child - decision to refuse affirmed.
Migration Act 1958 – s501
Re Prasad and Minister for Immigration and Ethnic Affairs (AAT Decision No. 9822, 7 November 1994)
Goldie v Minister for Immigration and Multicultural Affairs (14 September 1999) FCA 1277
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 115
Re Chau and Minister for Immigration and Multicultural Affairs (2201) AATA 485
Wan v Minister for Immigration and Multicultural Affairs (2001) FCA 568
Re Moengangongo and Department of Immigration and Multicultural Affairs (2001) AATA 74
Re Tuiono and Department of Immigration and Multicultural Affairs (2001) AATA 92

REASONS FOR DECISION

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

This is an application by Vith Chim ("the review applicant") for the review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent") refusing, pursuant to s501 of the Migration Act 1958 ("the Act") to grant to the review applicant's wife Nim Vann ("the visa applicant") a Sub-class 309 Spouse (Provisional) Visa.
Section 501 of the Act provides relevantly:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…
501(6)           For the purposes of this section, the person does not pass the character test if:
…
(c)       having regard to either of the following:
…
(ii)       the persons past and general conduct;
the person is not of 'good character'."
The exercise of power under s501 of the Act involves, firstly a consideration of whether the visa applicant is of good character and second, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In her decision the respondent's delegate refused to grant the visa applicant's visa under s501(6)(c)(ii) on the basis that she found the visa applicant did not satisfy her that she passed the character test and she refused to exercise her residual discretion in her favour.
The visa applicant was born on 11 June 1980 in Cambodia, the second of four children, one of whom, her elder brother, Vann Noeun resides in Australia.
The visa applicant and the review applicant were married in Cambodia on 29 December 2000.
The respondent's refusal of the visa applicant's visa was on the basis of some five grounds involving assertions of false and misleading conduct on the part of the visa applicant in her dealings with Australian migration officials.
The visa applicant has endeavoured to explain the migration misconduct alleged against her and whilst in a number of respects those explanations have validity, I find it unnecessary to examine them all in view of the one matter where I am wholly unable to accept her explanation.
In 1996 the visa applicant was included in her family's application for a remaining relative visa which application was made by her mother.
It is common ground that in order to fit the criteria of the grant of a visa a declaration was made in that application that the visa applicant's aunt was deceased. This claim was false as her aunt was alive and living in Cambodia.
The remaining relative visa application was refused by a delegate of the respondent on 11 April 2000, and thereafter an appeal was lodged against the decision with the Migration Review Tribunal (MRT) which appeal proceeded to hearing. The MRT's decision was handed down on 20 November 2001, affirming the decision under review.
The visa applicant was well aware of the appeal to the Migration Review Tribunal at the time she married the review applicant. However, she did not advise him of that fact.
The visa applicant's application for a spouse visa was signed by her and lodged by her at the Australian Embassy in Phnom Penh. By question 4 of the visa application form, the visa applicant was asked:
"Are you or any person included in this application currently awaiting a decision on another visa application?"

The answer given by the visa applicant was "No".

The spouse visa application was completed in Australia by a Mr Hong Lim whose assistance was sought by the review applicant, and to whom the review applicant took the blank visa application form to be filled out. Plainly the review applicant did not know, and thus Mr Hong Lim did not know, that the answer to question 4 was false.
The review applicant said in evidence to the Tribunal that she has very little knowledge of written English, and that when she received the completed spouse visa application form she did not try to read it because she could not read it. She said that when she lodged the application, she believed that the answers would be correct because she trusted her husband.
I do not accept that the visa applicant is entitled to justify the making of a false and misleading declaration in an application for a visa to come to Australia by asserting a lack of knowledge of written English, and reliance upon her husband when she had not at the relevant time disclosed to him the pending appeal to the Migration Review Tribunal against the rejection of the visa application in which she was included.
The visa applicant signed a declaration at the foot of the visa application form which included the following:
"Ÿ I declare that the information I have supplied in this application is complete, correct and up to date in every detail.
ŸI understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled. …
·I have read and understood the information supplied to me in this application."

That declaration cannot be circumvented by a claim that the application had not in fact been read at all.

The visa applicant was sufficiently conscious of the importance of the relationship between the appeal before the Migration Review Tribunal, and her supervening marriage to the review applicant, to ask her uncle Chhorn Chan in Australia whether the Migration Review Tribunal should be informed as to the fact of her marriage, and yet she did not inform her husband of that pending application. I cannot accept that was anything other than a conscious decision based either on an apprehension that the falsity of the remaining relative visa application might reflect badly on her spouse visa application, or alternatively on a desire to pursue dual applications for a visa to Australia in the event that one was refused.
In either event I am satisfied that the answer to question 4 on the very first page of the spouse visa application, and the declaration at the foot of the application form amount to the giving of false and misleading information either deliberately with full knowledge of that falsity or alternatively recklessly not caring whether the information given was false or not.
In Ragni Mala Prasad and Minister for Immigration & Ethnic Affairs (AAT decision 9822, 7 November, 1994), Deputy President McDonald observed:
"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."

I respectfully agree.

The notion of character within the context of s501 of the Act was explained by the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (14 September 1999) FCA 1277 at paras. 5-7, where Spender, Drummond and Mansfield JJ said:
"The concept of 'good character' in s501 is not concerned with whether an applicant for entry 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."
Ministerial Direction 21 provides by para.1.11 that general conduct also includes recent good conduct, and that both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. Relevantly therefore, it should be noted that there is no suggestion in this case that the visa applicant is of bad character other than in an immigration sense. Further, I take into account the openness with which she answered questions put to her at interview by migration officers in Phnom Penh after the detection of her inclusion in her family's remaining relative visa application. I am satisfied however, that her migration misconduct on this one occasion is of sufficient weight and seriousness to cause me to find that the visa applicant does not pass the character test.
Turning to the residual discretion under s501 of the Act to nevertheless grant a visa in the face of a failure to pass the character test, Ministerial Direction No. 21 requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The three primary considerations are:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No. 21, a consideration of:
(d)the seriousness and nature of the conduct;
(e)the likelihood that the conduct may be repeated;
(f)the likelihood that the visa refusal would prevent like offences by other persons.
Ministerial Direction No.21 makes it clear that the Australian government regards serious offences against the Migration Act as very serious. This is not surprising as s234 of the Act makes it an offence, in connection with the visa application to make a false or misleading statement and provides a penalty for a breach of that section of 10 years imprisonment or a fine of $110,000 or both. I am satisfied therefore that the visa applicant's conduct is serious notwithstanding, as I have already observed, she spoke and understood little English and was acting with the assistance of Australian citizens.
As Deputy President McMahon said in Re Lachmaiya and Dept of Immigration and Ethnic Affairs (1994) 19 AAR at 115-156:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia."
As to the likelihood that the conduct may be repeated, the fact that her application is for a permanent visa renders it remote that this sort of behaviour would again manifest itself, particularly as it now appears that she appreciates the gravity of her conduct and its repercussions.
As to the question of general deterrence, I am satisfied that in a case such as this, if the visa applicant is refused entry because of her breach of Australia's migration laws, other persons similarly minded may be deterred from following suit.
As Deputy President Wright noted in Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485 at para.25:
"In my opinion the only effective way of announcing loudly and clearly to prospective migrants from [Cambodia], that they must tell the truth in any application which they make, is by refusing visas to those who make use of fraudulent documents and untrue representations to gain entry into Australia. As to the expectations of the Australian Community, it is my view that it is expected that non-citizens will be open and honest with migration officials in relation to visa applications and the community would not expect a person who contravenes Australia's migration laws to later be afforded the privilege of a visa."
In this case, there is involved a parental relationship between a child and the person under consideration. The review applicant has a son Dalwin born of an earlier marriage, and now aged 5 years. Dalwin was born in Australia, is an Australian citizen, and started kindergarten this year. He speaks both English and Cambodian, and is cared for by the review applicant's mother, (who speaks no English), whilst the review applicant is at work.
It is clear from the decision in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 that this Tribunal is obliged to give proper, genuine and realistic consideration to the best interests of a child or children under consideration, bearing in mind that the best interests of a child is a primary consideration under Ministerial Direction 21. Thus having identified the best interests of the child, it is then a question of assessing whether the strength of any other consideration or the cumulative effect of other considerations outweigh the consideration of the best interests of the child understood as a primary consideration.
The review applicant is 34 years old. He has lived in Australia for 15 years. He fled Cambodia during the excesses of the Pol Pot regime, and was housed in Thailand refugee camps between 1979 and 1987 before coming to Australia in April of that year, and becoming an Australian citizen on 4 October 1989.
The review applicant is well aware of the value of Australian citizenship. His evidence was that he regarded Australia as a good country where there were freedoms, which were not available in Cambodia. He has good employment which he recognises he would not be able to obtain in Cambodia, and that wages and living standards are much better in Australia.
The review applicant was not specifically asked as to whether he had made a definite decision to return to Cambodia if his wife were not able to join him in Australia, however, I gain the impression that he may not, given his evidence that Cambodia "holds nothing for me really".
The review applicant gave evidence that he regarded educational opportunities in Australia for Dalwin to be much better than in Cambodia, and that medical and social support systems were much better in Australia. I find that it is unlikely therefore, that even if the review applicant returned to Cambodia to live with the visa applicant he would remove Dalwin from the benefits of Australian citizenship, and the loss of associated opportunities available to Dalwin in Australia. I find that it is more likely that Dalwin would remain in Australia to be raised during his formative years by the review applicant's mother.
I find that this is made all the more likely, whatever decision the review applicant makes as to where he will live in the future, by virtue of the fact that Dalwin's mother has court ordered access in Australia, although the evidence was that she does not always exercise that access, and usually does so by telephone.
In addition to the three "primary considerations" set out in Direction No. 21, I am required to have regard to relevant "other considerations" which may be taken into account, although generally accorded less individual weight than the "primary considerations".
In this respect the direction provides as follows:
"OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

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

I am satisfied that the review applicant's marriage to the visa applicant is a genuine marriage, and that at the time of that marriage, the review applicant had no knowledge of any migration misconduct on the part of the visa applicant, if indeed at that time it could be said that there was in fact any such misconduct.
The compassionate claims of the review applicant as the Australian partner, and the degree of hardship which would be caused to his immediate family members, no doubt including his mother, if the visa application is refused and the review applicant chooses to go and live in Cambodia, are powerful considerations which compete with the protection of the Australian community and the expectations of that community. I conclude however, in this case that those "other considerations" do not outweigh those primary considerations in this case.

I have considered each of the "other considerations" which have application to this case, and whilst I am satisfied that great hardship will be suffered by the review applicant and the visa applicant, whatever course is chosen after the refusal of the visa application, the relevant primary considerations outweigh that hardship.
One cannot but have considerable empathy with the review applicant's position given that he did not know at all of the remaining relative visa application until after he and the visa applicant were married, and did not know at all about the appeal to the Migration Review Tribunal until after the spouse visa application was rejected. If however, the plight of an innocent Australian partner was for such reason alone to be assuaged by the grant of a visa to his or her spouse in every case the compassionate claims of the Australian partner could be expected to be given greater priority in Ministerial Direction No. 21.
In considering the question of the visa applicant's rehabilitation and any other recent conduct, I note that there was no evidence that she has been of other than exemplary character except in relation to her migration misconduct.
"Recent good conduct" has been held to mean recent good conduct in an immigration sense (Re Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74 at para. 40).
If that construction is correctly applicable to para.2.17(h) of Ministerial Direction No. 21 there is really no evidence of recent good conduct apart from the visa applicant's acknowledgment of her misconduct.
If on the other hand, as was thought possible by Deputy President Block in Tuiono and Department of Immigration and Multicultural Affairs [2001] AATA 92 at para.9(b), the concept of recent good conduct is wider than conduct in an immigration sense it would be appropriate to have general regard to the visa applicant's good conduct since the making of the visa application. It is difficult however to see how such recent "good conduct", irrespective of the true width of that concept could carry sufficient weight to overcome the seriousness of the visa applicant's earlier misconduct given that such a relatively short period of time has elapsed since.
Having balanced both primary and other considerations, the Tribunal finds itself in this case unable to exercise its residual discretion under s501 of the Act in favour of the visa applicant.
It follows that the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed:         K.L. Miller
  Administrative Assistant
Date/s of Hearing  1 November 2002
Date of Decision  19 December 2002
Counsel for the Applicant        Ms K Anderson
Solicitor for the Applicant         Macpherson and Kelly
Counsel for the Respondent    Mr Michael Brereton
Solicitor for the Respondent    Australian Government Solicitor