Giang and Minister for Immigration and Multicultural and Indigeno Us Affairs

CATCHWORDS – IMMIGRATION – Spouse visa – character test – false and misleading information - whether of good character – failure to pass character test – whether discretion should be exercised –– best interest of the children – deterrence to others – decision set aside.

Migration Act 1958 ss. 20, 31, 234, 499 and 501

Migration Regulations 1994 cl. 309.225 of Part 309 of Schedule 2

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 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

Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353

DECISION AND REASONS FOR DECISION [2003] AATA 1008

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2002/430
GENERAL ADMINISTRATIVE DIVISION     )

Re Phuc Giang

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL )

) V2002/430

GENERAL ADMINISTRATIVE DIVISION )

Re:Phuc Giang

Applicant

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 13 October, 2003

CORRIGENDUM TO DECISION [2003] AATA 1008

The Tribunal amends its decision and reasons for decision published on 7 October, 2003 as follows:

Decision
Delete the word “applicant” at paragraph 2 of the decision; and
insert “Ms Hua Sut Chinh”
Reasons for decision
Page 48, paragraph 127
Delete the word “applicant”; and
insert “Ms Hua Sut Chinh”

(signed S A Forgie)

S A FORGIE
Deputy President

DECISION

Tribunal:                  Deputy President S A Forgie
Date:  7 October, 2003
Place:  Melbourne

Decision:The Tribunal:

1.sets aside the decision of the respondent dated 21 March, 2002; and
2.substitute a decision that the applicant not be refused a visa on the basis that she has not satisfied the character test within the meaning of s. 501 of the Migration Act 1958.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 26 April, 2002, the applicant, Mr Phuc Giang, applied for review of a decision made by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), dated 21 March, 2002. The delegate decided to refuse to grant a visa to Ms Hua Sut Chinh on the basis that she did not pass the character test pursuant to s. 501 of the Migration Act 1951 (“the Act”) and on the basis that he declined to exercise his discretion under that section. Mr Giang has sponsored Ms Hua’s visa application.

At the hearing, Mr Giang was represented by Mrs Weinberg of counsel and the Minister by, his solicitor, Mr Wood. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence. Admitted on behalf of Mr Giang were a letter from Sou Yuntha dated 21 March, 2003, a letter from Dok Hai and a letter from Seng Sakhon. Oral evidence was given by Mr Giang, Ms Hua and Mr Seng Sakhon in support of his case and by Ms Ling Nouv, a migration case officer based in the Australian Embassy at Phnom Penh, Mr Paul Vercoe, a Principal Migration Officer, Compliance, in support of the Minister’s case.

THE ISSUES

The first issue is whether Ms Hua passes the character test set out in s. 501(6) of the Act. If she does not pass that test, the second issue is whether the discretion in s. 501(2) should be exercised to refuse to grant her the visa.

BACKGROUND

There were only a few factual issues that were not in issue between the parties. In light of that and on the basis of the written and oral evidence of Ms Hua and of other evidence to which I will refer, I have made the findings of fact set out in the following paragraphs.

Mr Giang was born on 19 January, 1952 in Saigon in Vietnam. He speaks Cantonese and some English. While living in Vietnam, Mr Giang and Ms Hue Quan Tieu had a son, Vinh Thuan Giang, who was born on 22 September, 1987. Mr Giang and his son arrived in Australia on 8 August, 1991 and was granted Australian citizenship on 12 May, 1994. He has cared for his son, who is now 16 years of age and who continues to live with him, and has been in receipt of a Sole Parent Pension from 8 August, 1991 until the date of the hearing. Mr Giang was due to commence work in April, 2003 as a clothes dyer. His son is a student.

Ms Hua was born in Phnom Penh in Cambodia on 15 August, 1963 and is a Cambodian citizen. Ethnically, she is Chinese and has four siblings. Her main language is Cantonese but she also speaks, but does not read, Khmer. She completed five years of primary education from February, 1967 to December, 1972 and works as a seamstress.

Ms Hua’s father died on 11 September, 1998. Ms Hua married Mr Chhoeung Phat, a Cambodian citizen, in Cambodia a few days later on 21 September, 1998. There is a dispute between the parties as to whether Ms Hua and Mr Chhoeung Phat separated or whether Mr Chhoeung Phat died.

On 16 September, 1998, Mr Giang travelled with his friend and neighbour, Mrs Tonu Hua, to Cambodia to meet Ms Hua. They married on 21 September, 1998. The place of the marriage is in dispute between the parties.

On 16 November, 1998, Ms Hua applied for a subclass 309 Spouse (Provisional) Visa. In her application, she stated that she had previously been married to Chhoeung Phat, who had been born on 10 October, 1958, but that he had died on 8 September, 1991. She also disclosed that she had a daughter, Mey Yean Hua who was born on 3 April, 1989 in Phnom Penh. Ms Hua disclosed her father’s name to be Hua Thuan and her mother’s to be Stan Hue Chanh. Her mother, she said was widowed as her father had died when he was 30 years of age. The letters “N/A” were written on the form when it asked her to list all of her brothers and sisters.

THE EVIDENCE

The interviews

Mr Vercoe, whose responsibilities include combating people smuggling and organised fraud, had spent eighteen months in Cambodia at the time of the hearing. He has been an intelligence analyst and has a Masters Degree in International Politics. In addition, Mr Vercoe is a document specialist. He has conducted over eighty field checks in the previous twelve months in Phnom Penh and the provinces. Field checks are carried out to follow up those questions determined by the case officer as requiring follow up. He carried out field checks with the aid of a compliance assistant/interpreter and would be accompanied by a driver, who did not participate in the interviews. The District in which he carried out his field checks relating to Ms Hua was situated ten to twelve kilometres from the city centre. Once he had located the area in which Ms Hua lived, Mr Vercoe said that his normal method is to talk to people in the vicinity. He then moves closer to the address but is not interested in talking to the family straight away. Instead, he talks with the neighbours and the commune or village chief. Everybody knows everybody else’s business and the knowledge about a middle aged person is almost encyclopaedic, he said. As he does not speak Khmer, he relies on his interpreter. His interpreter, who was studying the final subjects of a law degree, had worked in East Timor for the United Nations and worked for a number of humanitarian organisations. He had, Mr Vercoe said, a good knowledge of English and Cambodian.

Mr Vercoe said that he has access to the files and undertakes preparatory work before he leaves for the field check. His interpreter interprets his questions and each makes notes at the time before moving on to the next question. In many instances, those notes are taken while they are standing or leaning against a door post. If there are follow up questions to be asked, he will ask them. A report of the visit is typed. Often, it is typed by the interpreter but Mr Vercoe said that he would add anything of value. He tries to reflect what has been said. Both he and the interpreter sign the record. They do not keep their notes as they are rudimentary.

Mr Vercoe said that he could not recall the name of the village chief to whom he spoke but later agreed that it was Seng Sekhon. The village chief is an important person. He holds the records of births, deaths and marriages and, to a degree, divorces. By the nature of the community, he would know of all the events in that community. The village chief lived only three or four houses away from Ms Hua. When asked how long he had been the village chief, Mr Vercoe replied that he was of an age that looked as if he had been there sometime. He would not have been the village chief if he had not been living in that locality. Mr Vercoe said that he saw the house in which Ms Hua lives. It appeared quite substantial by Cambodian standards. The family business appeared quite successful.

Mr Vercoe said that he would see a death certificate at least once each week. None of the records kept by the French had survived the Pol Pot regime and record keeping was only reinstituted in 1991 or 1992. If a document was required, a person would go to his or her village chief and present the dates to him. Whatever they stated would be shown on the document. The authorities are so poorly paid, Mr Vercoe said, that documents may be fraudulently obtained. Up to 40% of documents are false documents. This is the reason for checking with people in the village. He had not examined the death certificates in this case to ascertain their authenticity.

As a migration case officer, Ms Nouv assesses temporary entry visa applications such as those for student visas and business visas. Those applications have first been received by the local Khmer staff and then referred to a migration officer or senior migration officer. Those officers decide whether to refer an application to a case officer. If an interview were required, Ms Nouv said that she scheduled one interview each day. Ms Nouv said that she recalled two interviews with Ms Hua. Both interviews were in the presence of a Khmer interpreter. Before the interview, she gave her a document setting out information about the requirement to be of good character (T documents, pages 226-227). She gave Ms Hua 15 minutes to read it and then told her that applicants must be truthful in the information they gave and the documents they presented must be genuine. If they do not, there might be delays in the processing of their visas or their visas might even be refused.

In cross-examination, Ms Nouv said that she had not been aware before she gave Ms Hua the sheet that Ms Hua did not read Khmer or English. When asked whether she had read the file and seen that Ms Hua spoke in Cantonese, Ms Nouv said that she had read the file. She gave Ms Hua the document in Khmer because people who lodge documents at the counter speak at the counter in Khmer. When Mrs Weinberg suggested to her that it had been inappropriate to give Ms Hua a document in Khmer, Ms Nouv said that all Cambodians here speak a variety of languages. Had Ms Hua made it known across the counter, something would have been done about it but she did not make it known then. In response to the suggestion that Ms Hua was simple and uneducated, Ms Nouv said that it was not apparent to her. Normally, documents relating to education are not requested when an application is made for a spouse visa; they are requested in relation to student visas. She did not know that Ms Hua could not read until she told her. At that time, Ms Nouv asked the interpreter to interpret the document relating to character to her. Ms Hua said that she understood it then. Ms Nouv said that, had Ms Hua not understood the document, Ms Hua would have made it known and she, Ms Nouv, would have recorded that fact.

In cross-examination, Ms Nouv said that she had not asked about Ms Hua’s education because it was not relevant to the visa she sought. Ms Nouv said that she had asked her about her siblings because those were Ms Hua’s claims and she, Ms Hua, had not been honest about her siblings. She could not be sure that Ms Hua was being truthful. The number of her siblings was relevant to her visa application because the siblings shown in the application varied from those shown in another application. If she was untruthful about her siblings, what else would she be untruthful about?

Ms Nouv said that she would have prepared a draft of the questions that she wanted to ask Ms Hua and written down Ms Hua’s responses. Those responses were in handwriting but Ms Nouv later transcribed her handwritten record into a typewritten record. She then shredded her handwritten record as it meant nothing to anyone else. Normally, Ms Nouv said, she signed the typewritten record but there may be instances when she did not. Ms Nouv said that she had no indication from Ms Hua that she did not understand what she was being asked.

Ms Nuov said that questions 34 and 35 (see paragraph 36 below) put to Ms Hua in the interview of 20 March, 2002 were based on information that she had been given by other officers. It seemed that those officers had spoken to the village chief, who had acted as a witness. She had obtained the information from a report of the field check signed by those officers. The officers had not taped the interview; that is not standard procedure. If their notes are not on the file, she presumed that they were not available and might have been shredded. Investigative notes are sometimes shredded, Ms Nouv said, because they contain personal information of people and names of officers. They might get into the wrong hands. When it was put to her that she had not seen the questions and answers put to people such as the village chief, Ms Nouv said that she had not but that she could understand the report. A number of officers are responsible for different aspects of processing an application.

Ms Nouv acknowledged that Ms Hua had told her that the village chief was a new chief and that he was not the one who was the witness. Ms Nouv said that Ms Hua had denied the information put to her and said that it is quite common to do so. It is not common for witnesses to recant their information to officers. If they do recant to third persons, the officers had no knowledge of that.

Ms Hua could not recall the names of those who interviewed her but did recall that she was interviewed by two “Embassy men” at her home in September, 2002. She first said that she had seen those men earlier in January, 2002 but they had not gone into the house on that occasion. In answer to subsequent questions, she said that she was always at home and that she could recall another visit in January, 2002.

Ms Hua said that the interviews were conducted in Khmer. She is much more fluent in Cantonese than in Khmer. As she put it, in terms of depth of meaning, she does not have too much Khmer.

Ms Hua’s family

Ms Sut Lin Hua is one of Ms Hua’s four sisters. In an application for a visa to come to Australia under the sole surviving relative provisions, Ms Sut Lin Hua stated that she had four sisters. Three of those sisters had died but the fourth, Ms Sut Linh Hua, was an Australian citizen. Her parents, she said, had also died. (T documents, page 43)

In an interview with Ms Nuov on 20 March, 2002, the following exchange took place between her and Ms Hua:

“21.   When did your father pass away?
11/9/98.
22.    Did your mother enter another relationship after your father’s death?
No.
23.     Did your mother have any children before she married your father?
No.
24.     Did your father have any children before he married your mother?
I have a stepmother who passed away during Pol time. My parents were separated after having me. My mother was in a de facto relationship and had two other children, my half siblings but my father and his second wife, my stepmother never had any children.
25.     How many blood siblings do you have in total, dead, alive or missing?
I’m an only child.
26.     How many half-siblings do you have?
Two, LIM Ran and LIM Phal.
27.Where do they live?

Close to my house.
28.     On 18/1/2002, two Immigration officers went to your village in Khan Dangkor attempting to speak to you. They spoke to your mother who confirmed that she had five children in total, one in Australia and four in Cambodia. Please comment.
I was aware of this. My mother doesn’t speak Khmer very well so you must have the wrong information.
29.     The officers also spoke to two of your blood siblings who gave the same details as your mother. Please comment.
They wouldn’t say that. You must have misunderstood.
30.     They also received information from another source that confirmed that you have four blood siblings living in Cambodia. Please comment.
That’s not true.
31.     Why should your mother, your two siblings and your neighbour tell us you have four siblings?
My mother is not clear, You must have misunderstood.
32.     Why should these three groups of people give the same information about your siblings?
You must have talked to squatters who have recently moved to the area.
33.    We spoke to your village chief who gave the same information. Why is that?
He’s a newly appointed chief.” (T documents, pages 224-225)

At the interview Mr Vercoe and an interpreter held with Ms Hua’s sister, Ms Sut Chhing Hua, on 9 September, 2002, the questions and answers were recorded as:

“Q.    During our house check on 18 January 2002, you and your mother told us that you have 4 siblings (three in Cambodia and one in Australia). Why have you told us this time you have only 2 siblings? And we remember that at that time we met one of your sisters who had a short haircut like a man, what is your explanation?
A.      No, I have only 2 siblings. When I told you previously that I have 4 siblings I included my cousins. After we presented the facts and circumstances that we met her sister (a woman with a short haircut like man), Ms. Chhing admitted that a woman with a short haircut like man is also her sister and she is call HUA Sut Lin.
Q     Are you sure you have only 3 siblings?
A.      Yes I am sure.
Q.      Do you have any blood-relatives in Australia and who are they?
A.      Yes I have uncles, aunts, and cousins but I don’t know their names.” (T documents, pages 493-494)

Mr Giang’s relationship with Ms Tieu

In a statement dated 23 June, 1999, Mr Giang stated that his relationship with Ms Tieu began in 1983 and was a defacto relationship. Their relationship ended in 1991 and shortly after she had sponsored him to come to Australia. He said that he has not had any communication with Ms Tieu since that time.

Ms Hua’s life in Cambodia

A document entitled “Certificate of Achievement” and issued by the Office of Education Youth & Sports, Khan Dangkor, The Sophak Mangkoul Primary School, related to Hua Mey Yean, who was born on 3 April, 1989 and who was the daughter of “Mr. CHHOEUNG PHAT (died) and Mrs. HUA SUT CHINH” (T documents, page 185). The certificate was dated 6 October, 2000. An earlier certificate dated 14 September, 2000 showed similar information.

Mr Giang identified photographs of Ms Hua, her parents’ home and her daughter. All but one, photograph 517 (T documents, page 517), had been taken a long time ago. In the photographs other than 517 (T documents, pages 504, 505 and 507-512) Ms Hua was wearing jewellery but he had not seen it since he had known her. He agreed with Mr Wood that she appeared well dressed but said that women enjoy “decorations” and queried whether they were real or false. He thought that they were false. When she runs her business, she is very casually dressed but taking photographs is “big business” and she likes to dress up for them. Photograph 517 depicts Ms Hua as he knows her and she is not wearing jewellery in that photograph.

Mr Giang agreed that Ms Hua’s parents’ house was “nice in appearance” but he had not had any opportunity to visit the homes of other people in Cambodia. Mr Giang said that he did not know who owned the house although his wife’s mother has lived there since her father died. The house comprises two rooms. His mother has room in front of the kitchen and the others sleep in the lounge on the ground. The telephone is not connected to the house but the family uses a mobile telephone. There is a television and a very small refrigerator in the house. A washing machine is shown in the photographs but it does not work and all washing is done by hand. A cask is used for storing rain water and there is a well from which water is drawn. The house does not have running water. The toilet is a hole with a bucket.

Mr Giang said that his wife lives in the house and shares a room with her daughter. The room is very simply furnished with a bed, wardrobe and a table. Also living in the house are her mother, two sisters, the daughter of one of her sisters, whose husband died, and the husband of the other. Another sister and her husband live in another house next door together with their three children.

Mr Giang said that Ms Hua’s daughter had been photographed outside a shop owned by his wife’s family. The family sells mineral waters and “utilities” such as cigarettes, soap, tooth paste and brushes. Mr Giang said that his wife sells “things” at the front of the house and has done so ever since he met her. When asked whether, by Cambodian standards, the family lives very well, Mr Giang said that the family is very thrifty. Even when he visited Cambodia, he had to take money to buy good things to eat. The family does not have much income. From what he sees, they are very thrifty and do not have “deluxe things”.. The money from the business is used to maintain the household. All of the family apart from her sister’s husband, who lives in the house next door and is a taxi driver, are involved in the business.

Ms Hua confirmed that she works as part of the family business. The house passed to her mother after her father’s death and those who live in the house all help her and contribute to the expenses. She said that she could not afford to live elsewhere. Her former husband lived there as well. He had been too sick in the last year of his life to work.

Did Ms Hua’s marriage to Mr Chhoeung Phat end because of separation or because of his death?

A document headed “Certificate of Death” stated that Chhoeung Phat, a Cambodian farmer who had been born on 10 October, 1958, had died on 8 September, 1991. The reason for his death was said to be “Disease” and his death was reported by his wife, Hua Sut Chinh, who was “Born on 1963” (T documents, page 135). Another certificate was written in precisely the same terms as the first but showed the date of death as 8 September, 1998 and not as 8 September, 1991 (T documents, page 492). In a letter dated 21 March, 2003, Sou Yuntha said that the reason for the variation was a typographical error. The correct certificate was that dated 1991 (Exhibit A).

In cross-examination, Ms Hua said that the death certificate had been issued to her after she had applied for it. She did not have to give them much evidence but witnesses to his death went with her.

On 18 January, 2002, Mr Vercoe and the interpreter showed a photograph of Ms Hua and another of her daughter to people living in the vicinity of their address in Phnom Penh and talked to a number of people. The first people to whom they spoke enabled them to find Ms Hua’s address. The last people to whom they spoke were Ms Hua’s mother and two of her sisters. The sisters were not named. They summarised the information they had been told:

“The mother told us that she has 5 daughters – four in Cambodia and one in A/a and all of her daughters are alive. This contradicts the information in the application. We spoke to the two siblings of the PA about the marriage. They told us that the PA’s wedding took place at the house of their Aunty somewhere close to Phkar Chhouk Tep Hotel/Restaurant which is also contradictory to the address on the marriage certificate. They told us the PA is a grocery seller. A photo of the PH was shown to them, which they recognised as PA’s children. We asked them about PA’s ex-husband, and they told us that the PA’s ex-husband had deceased from a chronic-illness.
We spoke the village chief next to PA’s house. He and his wife told us that the PA has 4 sisters. The PA’s father passed away couple years ago but the PA’s mother is still alive. The photo of the PH was shown to them, which they confirmed as PA’s daughter. They said that the PA is married but the wedding was not held at the PA’s house. We asked them about the PA’s ex-husband, they told us that PA’s ex-husband divorced (separated) with PA (in front of the village chief) but the divorce did not go through the court process.” (T documents, page 216)

Ms Nouv interviewed Ms Hua on 20 March, 2002 regarding her first husband and her marriage to Mr Giang:

“Do you agree that having regard to your past and present general conduct you are not of good character?
I disagree. Your finding is not true. My husband really passed away. Everyone is aware that my husband passed away. [On review: The villagers are aware that I live with my child and live with her for 10 years.]
Do you have any comment regarding the concerns expressed in relation to the current application?
I do not have anything to say. I deny your findings. [On review: no changes.]
Do you wish to comment on the seriousness of these issues and the circumstances under which your conduct occurred?
I did not do anything wrong. [On review: no changes.]
What involvement did your sponsor have in making these false claims?
He knew about the marriage certificate but he didn’t read the contents properly before he put his thumbprint there. [On review: no changes.]
What is the likelihood that you may repeat the conduct?
I did not lie to you. [On review: no changes.]
Do you wish to make any comments regarding the following:
The extent of disruption to any family, business or other ties to the Australian community that you may have;
I don’t know. I don’t understand why you say I am lying. (Explained results of house checks to PA and also the false marriage certificate that she had provided.) [On review: no changes.]” (T documents, page 219)

Ms Nouv further interviewed Ms Hua on 20 March, 2002 and part of that interview touched upon her first husband. The questions and answers were:

“13.   Does your former spouse Chhoeung Phat still have access rights to your daughter?
He already passed away.
14.     When did he pass away?
8/9/91.
15.     What was the cause of his death?
Malaria.
16.     Where did his funeral take place?
There was no funeral as I was poor. We just invited Chinese nuns to our house.

17.     Where is his resting place?
He is buried at Kabol, a graveyard beyond the airport.
18.     Do you have a commemorative plaque to make his resting place?
No. I just remember his burial place.
19.     Were you still married to him when he passed away in 1991?
Yes.
20.     We have received information from another source that suggests you and your former spouse were separated before your village chief but not formally through the courts. Lease comment.
He passed away since my child was young.” (T documents, pages 223-224)
…
34.     We also uncovered that you unofficially separated from your previous spouse in front of your village chief who acted as your witness but did not take the matter to the courts. Please comment.
He’s a new chief.
35.     Why did the village chief state that he witnessed your separation?
I want to see him. He was not the one who was the witness.” (T documents, page 225)

In cross-examination, Ms Hua said that she had not been in front of the village chief. Her husband had died of an illness but with so many people in the village, the village chief forgot who was who. She did not agree with the proposition that the village chief kept very detailed records.

On 9 September, 2002, Mr Vercoe and his interpreter again interviewed Ms Hua as well as her daughter, May Yean Hua, and two of Ms Hua’s sisters, Ms Sut Chhing Hua and Ms Sut Han Hua. Ms Hua told them that she had been married at home to Chhoeung Phat sometime in 1985 and said that she had photographs of the occasion. When she told them that her husband had died on 8 September, 1991 of malaria, Mr Vercoe and the interpreter asked her:

“Q. If you and your family were aware that your first husband died of malaria, why in his death certificate did you try to mislead us that he died of a chronic illness, what is your explanation?” (T documents, page 496)

Ms Hua replied:

“A. When I approached the police for issuance of his death certificate, I reported to them that my first husband died of malaria. But the police said that if I put that my husband died of malaria in the death certificate, this was not a good ground for death then they suggested me to put that he died of a chronic illness.” (T documents, page 496)

Her husband died at home, Ms Hua said, and she was then questioned about his funeral and mourning ceremonies:

“Q.    When your husband died, was there any mourning ceremony at your home?
A.      No, there was no mourning ceremony held at home because I was very poor but his body was kept at home for 3 days before we brought it to the Combo Cemetery for burial (Combo is located on the outskirts of Phnom Penh city to the west which is in Ang Snour District-Kandal Province).
Q.     Do you have any photos of the your husband’s funeral?
A.     No, I have not because I was poor.
Q.     According to Khmer/Chinese tradition, have you held a 7 days ceremony or 100-soul-day ceremony as a remembrance for your husband?
A.      Not at all because I was poor and I followed Chinese tradition.
Q      You said that you follow Chinese tradition, Chinese people are very keen to hold a remembrance ceremony of the death, why didn’t you follow that doctrine and what is your comment?
A.     I have no comment.
Q.     From the day that your husband died until today, have you been paying a respect to your husband tomb?
A.      No, not at all.” (T documents, page 496)

In cross-examination, Ms Hua said that she had fond memories of her first husband but that he had passed away. She had loved him all of the time that they were together. In the interview in September, 2002, she said, she had not said that there had not been any observances. She had said that the 7 day and 100 soul day ceremonies had been done in one. In response to later questions, Ms Hua said that the family had been very poor when her husband died. He had been a logger in the forest but only gave her very little money for household expenditure. Most of his money was spent on his own eating and drinking. He was an alcoholic and smoked and did not come home. Sometimes, there was not enough money for the family but Ms Hua said that she sewed clothes at home and made enough money to support herself and her daughter. She was not part of the family business at this time.

In cross-examination, it was put to Ms Hua that there would have been someone in the family who could have taken photographs as she had said that photographs of her wedding to her former husband had been taken by his friends. She replied that she did not take any photographs of her husband’s funeral because it was so chaotic and because they were so poor. There was no ability to do so. In addition, it was so chaotic and she never thought about it. Ms Hua also said that it is not usual to take photographs at a funeral.

Ms Hua said that it takes 15 to 20 minutes to travel by car to the cemetery where her husband is buried. She seldom travels outside the family home. When she buried her former husband, she rented a car for transport. Her brother in law is the only member of the family to own a car. It is a taxi and, as it is very busy, only very, very occasionally is he asked to assist with transport. She has access to a bicycle but she said that she could not use it to go to the cemetery, which she agreed is 10 kilometres from the house, as it is a very long distance from home. Ms Hua said that it is part of Chinese custom to visit the grave of a former husband but she only follows half of the Chinese tradition. She described herself as a “mean person” and as “very thrifty”. It is not necessary to pay respects at the grave site, though, as respects may be paid at the front of the house. When Mr Wood suggested that it was odd that she did not visit the grave site in view of her long relationship with her husband, Ms Hua said that it was not necessary for her to do so. It is the same if respects are paid at the front of the house; her husband had died and he knew that she did so.

In re-examination, Ms Hua said that there is a cemetery in the village where she lives and it is much closer than the cemetery in which her husband is buried. It is, however, very expensive to purchase a plot there and she could not afford to bury her husband there. It is much cheaper at the cemetery she chose. She pays tribute to her husband at the front of the house by burning incense and setting out fruit and paper clothes and by paying tribute to him by calling him back. Inside the house is an altar to the family’s ancestors.

In an interview conducted on 9 September, 2002, Ms Mey Yean Hua said that she did not know when and how her father died or about such things as whether a mourning ceremony had been held. She did know that her father was buried at the Combo Cemetery and that she and her mother had never paid any respect to, or visited, his tomb or otherwise held any remembrances of his death.

Ms Hua’s sister, Ms Sut Chhing Hua, said that Ms Hua’s first husband died at the house of a chronic illness. She could not recall the month or year of his death. She could recall that there was no mourning ceremony held at home.. His body was taken directly to the Wat or pagoda in Phnom Penh for the funeral and his cremation took place two days after his body had been kept at the Wat. No photographs of the funeral were kept as the family was poor. Neither a 7 days ceremony nor a 100 soul day ceremony has been held as a remembrance to him as the family was poor. Her sister had taken food to give to the monk, who conducted the ceremony.

Ms Hua agreed with Mr Wood that Ms Sut Chhing was one of her two siblings who lived with her in the house. Her sister did not live in the house at the time and did not know that the two ceremonies were combined in one. Her sister only came back to live in the house after their father died. Before then, she had come home only occasionally as she had been studying far away from home and living with the aunt, who had subsequently made her house available for Ms Hua’s wedding. That aunt had children of her own when her sister lived with her. That aunt was wealthier than other members of the family and that was why one of her nieces lived with her. That aunt has since migrated to the United States of America. Ms Hua could not recall when her sister had left home or how long she had been away. She came home after her father had died as she had stopped studying and the house was too quiet and empty.

Ms Hua’s sister, Ms Sut Han Hua, said that her sister’s husband had died of pneumonia. A mourning ceremony had been held and his body was kept at home for three days before being sent to the cemetery. She also held a 7 days ceremony of his death and a 100 soul day ceremony. There were no photographs of the funeral as her sister was poor.

Ms Hua said in cross-examination that Ms Sut Han Hua lives next door and has done so for a long time. Before her marriage, she lived in the house with Ms Hua. They are close, Ms Hua said. Mr Wood drew to Ms Hua’s attention, her sister’s statement to Mr Vercoe and the interpreter that her husband had died of pneumonia and asked if she had “any answer to that?”.. After some confusion, the question was repeated on the basis that her sister’s assertion was at odds with Ms Hua’s claim that her husband had died of malaria. Ms Hua replied her husband had an illness that was a combination of liver and coughing. She chose not to say pneumonia.

Mr Vercoe and his interpreter also conducted three other interviews and reported on them:

“On the same day after we finished interview with applicant, her daughter, and her siblings, we spoke to Mr. SENG Sakhan who has been working as village chief for more than 10 years. He told us that in regard to CHHOEUNG Pat’s death, there were no funeral or remembrance ceremonies being held at the applicant’s address.
We talked to Ms. KAO Mom who is the immediate neighbour to the applicant, she told us she has been living in the village since 1980. She told us that the PA was first married to a Vietnamese man and from that relationship, the applicant has one daughter called Mey Yean. She told us that the applicant’s first husband was not deceased but had returned back to Vietnam.
We talked to Ms. KAO Vanna who resides 2 doors from the applicant’s house, she told us she has been living in the village since 1980. She told us that the applicant was first married to a Vietnamese man and from that relationship, the applicant has one daughter called Mey Yean. She assured us that the applicant first husband was not deceased but he returned back to Vietnam.

We collected some photos of the PA spanning the period 1985 to 1991. From her dress and bearing, it would appear that she was not living in poverty and had access to money, and should have been able to have photos of her husband’s funeral ceremony. There is also a photo of the PA and her sisters at the wedding of her sister (HUA Sut Han), where she is very well dressed and appears to be financially well off.” (T documents, pages 499-500)

Mr Vercoe said that the village chief had told him that Ms Hua had four sisters, that her mother was still alive and that she had a daughter. The village chief also told him that Ms Hua’s husband was not at the house. She was not formally divorced from her first husband but it was recognised in the community that they were so. In cross-examination, Mr Vercoe said that he recognised the village chief because he recognised him from his previous visit with him. It had been his understanding that he was the village chief and not the deputy village chief as Seng Sakhon describes himself in his statement.

Mr Vercoe said that the seven day and the hundred day ceremonies are conducted in that time frame from the date of a person’s death. There is another ceremony when yellow ribbons are placed over all of the graves. People follow customs closely to show respect for the deceased. Often, there is a small altar in the house. Food is offered and presented. Mr Vercoe said that he did not know what happened in the ceremonies themselves but that they would involve Ms Hua’s going to the Pagoda with the family. There would be some expense involved as there would be some offerings of food and the burning of incense but the ceremonies happen in the poorest of villages. Mr Vercoe said that it was most unusual not to follow Chinese custom. It was most unusual not to have photographs in that period. Photographs are kept in beautiful albums and displayed on a ledge or hanging on a wall. They are very important. There was an altar in the home but no photograph of Ms Hua’s first husband.

Mr Vercoe described Ms Hua and her family as successful business people and as comfortable middle class people. He took into account their house, business and clothes. He accepted that she might not be devout in her religion or observant of customs. He also accepted that she might be frugal but it was still unusual not to have photographs. When it was suggested to him that there might not have been a great deal of love between the spouses, Mr Vercoe said that no-one had suggested that might be the case.

Mr Vercoe said that Ms Hua’s response to him was that she had said “no comment” when he had suggested she was not following Chinese tradition. Her response to his suggestion that she had not been paying respect to her husband’s tomb is not clear. It could be read as her agreeing or disagreeing with his suggestion. Mr Vercoe understood that the cemetery where she said that she had buried her husband was located quite a long way from her home. This too seemed unusual to him because, normally, burials of a relative took place close to the village if not in them. That enables respects to be paid and for the grave site to be tended. If a person is cremated, it takes place at a pagoda close to the village.

Mr Vercoe said that he spoke to two of Ms Hua’s neighbours. Ms Kao Vanna and Ms Kao Mom had lived in the area since 1980 and both told him that Ms Hua had married a Vietnamese man. They had a daughter. Ms Hua’s husband had not died, she told him, but had returned to Vietnam. People would have known that there was no funeral, Mr Vercoe said, because there was no mourning music. That music is played over a loudspeaker all day and is certainly noticed. Funerals are not undertaken quietly. In some instances, an applicant’s friends and relatives will be in collusion, Mr Vercoe said, and will have been briefed to hold the line. In this case, it seemed to him that the people to whom he spoke were busy people who answered his questions openly and genuinely. There was no suggestion of malice in them. When asked if he thought that there were inconsistencies in what he had been told, Mr Vercoe replied that he did think that but it was only his job to report the facts back to the delegate. He tries not to put an interpretation into his reports but simply to report his questions and the responses. When asked why he had not asked the neighbours when Ms Hua’s first husband had returned to Vietnam, Mr Vercoe replied that he might not have included that in his report.

In cross-examination, Mr Vercoe said that he would have spoken to people other than the two neighbours. When asked whether those people had told him that Ms Hua’s first husband had died, he replied that he could not recall. He spoke to a number of others to see if they knew Ms Hua and asked them about her husband’s death. Mr Vercoe said that he did not report what they had said; he had two statements. He could not recall whether they had said that he had died. Mr Vercoe no longer has his original notes.

Mr Seng Sakhon wrote a letter in which he explained that he is the deputy of the village leader and went on to say:

“On Dated 18 January 2002 at 9 am there were two men (1 is Cambodian and another one is Australian) came to interview me about Mr. Chhoeung Phat and Mrs. Hua Sut Chinh’s case. By that time I was not sure about the story and I answered that Mr. Chhoeung Phat who was husband of Mrs. Hua Sut Chinh was divorced. To tell the truth, I have not signed at all whether this couple get divorced or not. So I made a mistake.
Actually, Mr. Chhoeung Phat was a really died in date 08.9.1991 by chronic illness and his body was bury in … place.
I declare that Mr Chhoeung Phat was died in 1991.” (Exhibit C)

In giving evidence, Mr Seng Sakhon recalled being visited by two men from the Australian Embassy in January, 2002. He said that he had confused Ms Hua’s circumstances with those of somebody else and that her husband had died. He was confused, he said, and had no other explanation for being confused. There are 1,366 families in the village. It is his job to look after all of those families and all who come into the village. He keeps records of all of those who marry and those who divorce. Some divorce officially and others just go away.

Mr Seng Sakhon said that he had known Mr Chhoeung Phat for about ten years.. He first met him in 1987 or 1988 and was quite close to him. When asked whether his knowing him for ten years meant that Mr Chhoeung Phat had died five or six years ago, Mr Seng Sakhon replied that he had died in 1991. “Why is it not enough; ten years?” he asked. When it was pointed out to him that his statement was not consistent, he said that he had not calculated the time; he had known him a little bit for a long time. He had responsibilities at the time. When he last saw him in June, 1990, Mr Chhoeung Phat was very sick. Mr Seng Sakhon denied that Ms Hua had gone to see him and persuaded him to change his evidence.

Mr Seng Sakhon said that he had recorded Mr Chhoeung Phat’s death but he did not have it with him as he had been at the Pagoda and not at home when he was called by telephone to give evidence. His evidence was given on a holiday in Cambodia. He issues certificates of death but nobody else does, he said. There is a central record of births, deaths and marriages but they have to go through him.

Mr Dok Hai wrote a letter stating that he was the village leader. He certified that Mr Chhoeung Phat died on 8 September, 1991 due to a chronic illness. Mr Dok Hai gave as the address of the place at which he died the address of Ms Hua’s family home (Exhibit B). He was telephoned to give evidence but was unavailable.

Mr Giang’s marriage to Ms Hua

In his statutory declaration dated 23 June, 1999, Mr Giang said that he and Ms Hua went out together every day after she and her daughter met him at the airport on 16 September, 1998. He continued:

“… I knew then that we were suited. We celebrated our marriage at the house of her aunt, Nouth Yeok, on 21 September 1998. My wife’s uncle, Hai Hua, came from America for the wedding. Apart from her uncle, aunt and her … [cousin], Tonu, Chinh had no close relatives in Cambodia; therefore, most of the wedding guests were friends of hers or her aunt’s.” (T documents, pages 123 and 172)

In his oral evidence, Mr Giang said that, since the time at which they were neighbours in Vietnam and had both travelled to Melbourne, he and Mrs Tonu Hua have been friends. She has baby sat his son since he was six or seven years old. Some time in 1997, he spoke to Mrs Tonu Hua about his need for a wife as he is ageing and his son’s need for a mother’s influence. Mrs Tonu Hua showed him a picture of her sister, Ms Hua, and telephoned her about Mr Giang. Ms Hua agreed that Mr Giang could telephone her. Over the next three or four months, Mr Giang and Ms Hua spoke on the telephone on some ten or so occasions each of 20 or 30 minutes. A relationship developed between them. Mr Giang felt that Ms Hua would be a suitable wife and he proposed to her. She accepted and, on 16 September, 1998, he travelled with Mrs Tonu Hua to Cambodia to meet her. They married on 21 September, 1998.

In cross-examination, Mrs Giang said that he had never asked Ms Hua about her age as that was a matter for her. As for her education, she had told him that she had studied until she was 16 or 17 years of age. Mr Wood suggested to him that he could not “say for sure” that he and Ms Hua would be compatible when he proposed to her; a person who had been raised in a country where he had never lived. Mr Giang’s response was that, given his age and background, he did not have many demands. In response to Mr Wood’s suggestion that he would have had a better idea of whether they liked each other had he lived in Cambodia and had day to day dealings with Ms Hua rather than talking to her over the telephone, Mr Giang replied that they had conversations and that, when he went to Cambodia, he was very happy. He agreed with Mr Wood that he did not know whether the marriage would be successful. His son had not accompanied him as he had to stay in Australia to study.

In his oral evidence, Mr Giang said that his marriage to Ms Hua had been definitely arranged before he travelled to Cambodia on 16 September, 1998. The date had been chosen by her father while he was alive. Although they had planned to marry at her home, they married at her aunt’s house as her father had only recently died. It is not the custom, Mr Giang said, to hold a marriage ceremony in the house at that time.

In a document dated 16 September, 1998 and signed by Ms Hua, she asked the Minister of Foreign and International Cooperation Affairs for permission to marry and live with a spouse, Mr Giang, abroad. She enclosed certificates of her being single (i.e. a widow), of her parents’ agreement to her marrying and as to her health. (T documents, page 133) An invitation to the wedding of Ms Hua and Mr Giang were printed. Mrs Bo Luc, Mr Hua Hai and Mrs Nouth Yeak issued the invitation to their wedding on 21 September, 1998 at the bride’s house. A map was enclosed for guests. (T documents, page 129) A document dated 22 June, 1999 stated that Ms Hua and Mr Giang had married at an address that was the address of her family home (T documents, page 131).

In Ms Nuov’s interview of Ms Hua on 20 March, 2002, the following exchange took place:

“7.     Where did the marriage ceremony take place?
At my aunt’s house since my father had passed away and according to Chinese custom, we couldn’t hold the wedding there as planned.
8.       Where is your aunt’s house?
I don’t know her address but has moved to the USA.
9.       What address was the marriage ceremony held?
In Phnom Penh behind the Chouk Tep restaurant.
10.     Why did you provide a marriage certificate reporting the marriage took place at your home at Tanguon Village? (see folio 22)
After my father passed away, we couldn’t hold the wedding at home as we had planned. We applied for the wedding certificate before the wedding.
11.     Are you saying you obtained your wedding certificate before the event took place?
Yes, we applied before hand.
12.    Why didn’t you have the document corrected with your aunt’s address if that is the case?
We didn’t think about this.” (T documents, page 223)

In the interview with Mr Vercoe and the interpreter, Ms Hua was questioned about the length of time between her father’s death and her marriage:

“Q.    When you married your second husband (the sponsor), why did the ceremony take place so soon (10 days) after your father died. Can you explain to us? Your family is Chinese and we noticed that all of your family members including your children all speak Chinese, we know that all Chinese people are very bestowed to the Chinese tradition and you just said that you followed the Chinese tradition. According to this perspective, if there is anyone in the family deceased like your father then this is not a good sign of luck or fortune why didn’t you postpone or cancel your wedding date?
A.      No, I can’t postpone the wedding because everything was already organized, arranged and my current husband (sponsor) has been here already for the marriage and moreover the date of marriage was selected by my father thus I have to proceed as planned.
Q.      It is not normal tradition and not a convenience time to hold a wedding so soon (10 days) after the father had died, normally people would postpone or cancel their wedding day, in this perspective what is your comment?
A.      As I told you my father fixed the date of my marriage and before he died he suggested us to proceed in regardless to his death.
Q.     When and where was your second wedding held?
A.     I married again on 21/09/1998. The wedding ceremony and its reception was held at my aunt’s house somewhere near Phkar Chouk Tep Restaurant (this location is located in the capital of the city which is 10KM away from applicant’s address).
Q.     Why did you provide us with a marriage certificate stating that your marriage was performed at your home address but actually your marriage was held at Phkar Chouk Tep Restaurant and the date of issuance of the marriage certificate was issued on a date after your marriage. Why did you and your sponsor deliberately attempt to mislead us and provided us with a bogus marriage certificate?
A.     We first planned to hold the wedding at home but because of my father’s death (10 days before the marriage) we decided to hold at my aunt’s house in Phnom Penh.
Q.     I think it is more likely that you and your sponsor attempted to deceive us because your marriage certificate was issued after your wedding had taken place. Why did you mislead the local authority that your marriage was at your home instead of at a restaurant and what is your comment?
A.     I have no comment.” (T documents, pages 496-497)

In cross-examination, Ms Hua said that there were “not many” people at her wedding to Mr Giang. She denied the assertion put to her in cross-examination that she had held the ceremony away from home as her husband had not died and that people in the local neighbourhood knew that. She agreed with Mr Wood that she had no way of knowing whether her application to come to Australia would be successful. She did not know how to answer him, she said, when he put to her that she had not considered the consequences if her application were not successful. She had not considered these things.

In cross-examination, Ms Nouv said that she understood that a person had to make an application for permission to marry. She did not know whether information as to the place of the ceremony had to be included as she had never applied. She imagined that the issue of the marriage certificate is reliant on the application. Ms Nouv could not comment on whether the address in the application could have been taken from the application. She had no evidence that Ms Hua’s father did not die and did not ask about his date of death as it was “totally irrelevant”. From the report that she had received from the field officers, it appeared that they had not asked her about her father’s death either. In response to the proposition that there was nothing sinister about the fact that the marriage was at a place other than the family home because Ms Hua’s father had died, Ms Nouv responded that it was not recorded in this way. Ms Hua should have advised the authorities that the marriage did not take place at home. There is a high incidence of fraud. Weddings are huge affairs and, if it did not take place at home, Ms Nouv suggested that Ms Hua might be trying to hide something. She recognised that there is a custom not to have a wedding at home when there has been a death but said that there is also a custom not to have a wedding so close to a death; usually, the wedding is postponed. She did not know if Mr Giang was only in Cambodia on a visa for a short period of time.

Mr Vercoe said that a wedding reception was often held at a restaurant but that the wedding ceremony was held at the house. Everything is highly decorated and people are dressed in their best clothes. Everything is very loud and visible. Normally, the ceremony is held at one of the family’s houses. For all that, Mr Vercoe said that he did not doubt that the marriage had taken place.

Events since marriage

Since his return to Australia, Mr Giang has sent money to Ms Hua and copies of 23 International Money Transfer Applications appear in the T documents. He said that he had not been able to send as much money in recent times as he has been unemployed. Mr Giang said that Ms Hua had not asked him for financial assistance. When he met her, she lived in her parents’ house and supported her daughter. He had assumed that, once they were married, he needed to assume that responsibility.

Mr Giang said that he has seen his wife once since their marriage when he visited Cambodia for three weeks. He telephones her once every one or two months. While he agreed that he had only seen Ms Hua for five or six weeks since 1998, Mr Giang said that, when they met, they were very happy and seemed destined to be husband and wife.

Future plans

In his oral evidence, Mr Giang said that he did not plan to go to Cambodia if his wife were refused a visa to come to Australia. He was already getting old and it is hard for him to “… squeeze out any more time to learn a new language and a new life”. That new language would be Khmer, which is the language spoken by the general population in Cambodia. He would not live in Cambodia. Mr Giang said that he had spoken of these things with his wife and had promised her that, if she were not able to come to Australia, he would visit her each year in Cambodia.

In cross-examination, Mr Giang agreed with Mr Wood that there was nothing preventing him from returning to live in Vietnam. When Mr Wood suggested that he could do that and that his wife could apply to live in Vietnam, Mr Giang replied that he did not want to leave his son in Australia. In cross-examination, Mr Giang said that his Vietnamese citizenship had been cancelled when he became an Australian citizen and he would be treated as a foreigner.

LEGISLATIVE BACKGROUND

Framework of Act

Under the Migration 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 a Spouse Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 as specified by cl. 309.225 of Part 309 of Schedule 2 of the Regulations.

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(2) of the Act provides that:

“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)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, in so far as it is relevant, provides that:

“For the purposes of this section, a person does not pass the character test if:
(a)…;
(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 in 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)…

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 23 August, 2001 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, Direction – Visa Refusal and Cancellation under section 501 – No.21 (“the Direction”).

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community 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 the 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 to remain in the community.”

The Direction - application of the character test

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). Only those in s. 501(6)(c) are relevant. Of them, the Minister stated in the Direction:

“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.”

In considering whether a person is not of good character when measured against s. 501(6)(c)(i), the Minister directs decision-makers to take the following into consideration:

“(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 for the law; and

(d) any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.” (paragraph 1.8)

With regard to s. 501(6)(c)(ii), the Minister directed, in so far as it is relevant to the circumstances of Ms Hua’s case:

“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 which the applicant has been charged; or

(b) resulted in 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).”

The authorities regarding “good character”

In this case, the focus is upon any criminal conduct in which Ms Hua may have engaged as set out in s. 501(6)(c)(i) and upon her 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 where 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 Decision 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 it 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 to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved 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 (Spender, Drummond and Mansfield JJ). 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 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. 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 it is unnecessary to pursue this question.” (pages 324 and 327)

Does Ms Hua pass the character test?

Much of this case turns upon whether or not Ms Hua has made misstatements in support of her application for a spouse visa. The misstatements that she is alleged to have made focus on three issues. One relates to whether or not she misstated the number of her siblings. Another relates to whether her first husband died or whether they separated and a third to whether or not she married Mr Giang and, if so, where.

Part of the backdrop to those three issues comprises Ms Hua’s education and background. Her evidence that she had five years of primary education was not disputed. That her main language is Chinese and that she speaks, but does not read, Khmer, was not questioned. I find, therefore, that her formal education is limited and that, while she can speak Khmer, it is not her main language. On the basis of her own evidence, I find that she is much more fluent in spoken Cantonese than she is in Khmer. I also find that she cannot read a document in the Khmer language.. I also find that she advised the Department that her main language was Cantonese when she applied for a Spouse Visa.

Despite her notification, I find that the interviews conducted at the Embassy in Phnom Penh were conducted with her in the Khmer language. Although Ms Nouv was of the view that Ms Hua should have told the counter staff at the Embassy that she did not speak Khmer fluently, I am satisfied that Ms Hua had made her position clear when she completed her application form. She had stated that Cantonese was her preferred language. Unless the question in the application form is intended to mislead an applicant to think that his or her needs and/or preferences will be taken into account when they will not, and I do not think that it is, regard should be paid to the answer. In the circumstances of this case, I find that Ms Nouv had read Ms Hua’s file but either did not see that she stated that her main language was Cantonese and that other languages she spoke and wrote fluently were Chinese (T documents, page 27) or paid no regard to it. Instead, she relied on what she had found to be the ability of those Cambodians, who came to the counter, to converse fluently in Khmer. She preferred to use her general experience to the particular knowledge that she had available to her regarding the particular applicant with whom she was concerned. Given the workload that officers in the Embassy must labour under, Ms Nouv’s oversight in an individual case is probably understandable but it means that I must take care in considering the report of her interview with Ms Hua.

Another part of the backdrop is the manner in which Mr Vercoe and his interpreter were asked to gather information. Although signed by both Mr Vercoe and the interpreter, I will refer to them as Mr Vercoe’s reports as only he was called to give evidence. The manner in which they recorded their enquiries is illustrated by their reports regarding Ms Hua’s first husband. Mr Vercoe acknowledged that he would have spoken about him to people other than the two neighbours and the village chief and yet only their words are reported in the report dated 18 January, 2002. He could not recall what those other people had told him and he had not kept his notes. It may be that those other people supported what the neighbours and village chief told him but it may be that they did not. We will never know because Mr Vercoe neither reported their comments nor kept his notes. Omissions of this sort inevitably raise, whether fairly or not, the question whether the investigator has collected only the information that will support the case against an applicant and not the information that will support his or her application. If an investigation is to be of value it must not only be a fair report but must appear to be a fair report of all the information that is gleaned and that is relevant to the issues under investigation.

The appearance of fairness also requires that matters be followed to their logical conclusion. There is, for example, no mention made of how the neighbours knew that Ms Hua’s first husband had returned to Vietnam or why they believed it to be so.

Neither Ms Nuov nor Mr Vercoe kept copies of their notes. In many cases, there may be no problems with their practice. It may always be the case if the questions and answers are recorded and reproduced as has happened in the case of some of his reports. Mr Vercoe’s reports, however, do not always follow that format but draw conclusions and are based on Mr Vercoe’s own understanding of the customs and presumably that of his interpreter. This is illustrated, for example, by their conclusion that Ms Hua is very well dressed and appears to be financially well off and that her family are successful business people. All of this was based on appearances i.e. the appearance of the house, business and clothes. There is no examination of their actual financial situation or of how the family acquired its house or the entitlement of Ms Hua to the family wealth. There is a reference to Ms Hua’s appearing to be well-dressed and financially well-off at her sister’s wedding but no reference to the date of that wedding or to the fact that she is a seamstress and so presumably able to make her own clothes.

This approach reflected an approach that had been adopted in relation to Ms Hua’s first husband when only some of those interviewed were noted in the report. It had also been adopted in assessing whether Ms Hua should have had photographs of her husband’s funeral. Based on the perception of Ms Hua’s financial status, it was stated in the report that she “should have been able to have photos of her husband’s funeral ceremony”.. Quite apart from the financial aspects, there was an assumption that, if she had the money, she would have had photographs. As she had the money, Ms Hua would have followed Chinese customs. The investigative report acquires an unfortunate air of reporting what appears to be and not what is and so of judging Ms Hua by reference to the appearances and not by an examination of the substance behind the appearances.

This passage is not intended as a personal criticism of Mr Vercoe for I am satisfied on the evidence that he was doing what he was asked to do. The problem that arises from the methodology adopted in the Embassy was that Mr Vercoe’s report was then used as part of the foundation for Ms Nuov’s interview of Ms Hua at the Embassy. The questions were put to her but there was no revelation of the source of the information used as the basis of the questions and so no opportunity for Ms Hua to refute the sources of the information or to give it any context.

For all that, there is no question that Ms Hua misstated the number of her siblings. She did not reveal that she had any in her initial application and maintained this in her interview with Ms Nuov. Her sister, Ms Sut Lin Hua, had stated that she had no brothers and sisters and Ms Hua’s statement was intended to be consistent with her sister’s application. It was a misguided attempt and it has meant that she is in contravention of s. 234(1) of the Act in that she has made false or misleading statement in connection with her visa application. That section provides that:

“A person shall not, in connexion with … an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a)…
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.”

Did Ms Hua’s first husband die? Ms Hua was consistent in her oral evidence at the hearing that he had died. Much was made of the varying reasons given for his death in the past. Ms Hua’s sister, Ms Sut Chhing Hua, said that he had died of a chronic illness and another sister, Ms Sut Han Hua, said that he had died of pneumonia. Ms Hua herself had said that her first husband died of malaria and described his illness as a combination of liver and coughing. The death certificate stated that he had died of a chronic illness. No evidence was led to suggest that the death certificate was illegal and Mr Vercoe did not examine either that recording the date of death as 1991 or that recording it as 1998 with regard to authenticity. Ms Sou Yuntha, who explained the difference as a typographical error, was not called or cross-examined on her statement to that effect.

Ms Hua said that she told the police that her husband had died of malaria. This led to the issue of a death certificate which, in the absence of any evidence doubting it, I must presume that it is an authentic document. Even as an authentic document, a death certificate issued in Australia is not conclusive evidence of a person’s cause of death in Australian courts. The probative value of a death certificate must be determined by its context and “The probative value of the particulars of the entry cannot … rise above that of their source” (Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465 (Barwick CJ, Windeyer, Owen and Gibbs JJ; Windeyer J dissenting; per Barwick CJ at page 466).

Even if it were conclusive evidence, there is nothing inconsistent between a description of a person’s death as being due to a “chronic illness” and malaria. Malaria, as an intermittent and remittent fever, may well be described as “chronic” in the sense of lingering or lasting. While no medical evidence was given at the hearing, it is a matter of common knowledge that malaria may present as a fever and flu-like illness while pneumonia is an infection or inflammation of the lungs. For a person who is bed-ridden by an illness, pneumonia may be a consequence. That is not to say what happened in the case of Ms Hua’s first husband but it is to say that there is no inconsistency between Ms Hua’s sister, Sut Han Hua, describing his cause of death as pneumonia, Ms Hua as malaria and the death certificate and Ms Sut Chhing Hua as a chronic illness.

It was also suggested that there were inconsistencies between Ms Hua’s evidence regarding the seven day and 100 soul day ceremonies. On the basis of her evidence and that of Mr Vercoe, I accept that such ceremonies are usual in the ethnic Chinese community in Cambodia when a person has died. That something is usual, however, does not mean that every member of the community follows what is usual. Ms Hua said that she adopted a modified form of the seven day and 100 soul day ceremony and had chosen a cemetery a long way from her home because she was poor and frugal and had chosen what she could afford. She did not have photographs of the funeral because it was not usual.

Again there were differences between Ms Hua’s descriptions of the rituals that she had followed and those given by others. Ms Sut Chhing Hua said that there was no seven day or 100 soul day ceremony. Ms Hua’s evidence that her sister did not live in the house at the time of her husband’s death was not questioned at the hearing. Ms Sut Chhing Hua was not called to contradict Ms Hua’s evidence and there is nothing in Mr Vercoe’s record of his interview with Ms Sut Chhing Hua to indicate that he asked her whether she lived at home at the time.

Having regard to Mr Seng Sakhon’s evidence, it was less than satisfactory on two fronts. One was the circumstances in which it was given as he was at the Pagoda on a holy day and there was a considerable amount of background noise. The second was that there appear to be some inconsistencies between his written evidence and his oral evidence. One relates to whether he is the village chief or the deputy village chief. His statement and his oral evidence were consistent and I prefer them to Mr Vercoe’s understanding that he was the village chief. Mr Seng Sakhon said that he had confused Ms Hua with another person when he said that she and her first husband were separated.

On some views, it may be argued that Ms Hua has contrived a story as to her first husband’s death. If that is the view that is adopted then she certainly did not organise either her documentation or her family or friends to support it. Perhaps that is because she lacks education but formal education is not required to contrive a story and to know that everybody must have the “story straight” if it is to have some chance of success. The fact that everybody did not give the “same story” does not mean that she is telling a story. Seen from the other side, the fact that they do not may be more consistent with the fact that she is not telling a story than that she is. The evidence of her family as to the cause of his death is consistent. Her evidence is consistent with theirs and, given that she is a careful person and that the last years of her marriage were shadowed by her first husband’s alcoholism and illness and that she was left to support herself and her daughter from her own earnings, it is not surprising that the ceremonies to mark his passing were low key. The fact that certain practices may be traditional does not mean that they must be followed. If a person does not follow them, though, it may be that the event may be overlooked or become a matter of conjecture. Taking all of these matters into account and having regard to the whole of the evidence, I am satisfied that Ms Hua’s first husband died in 1991.

The next aspect to consider is the wedding. It is accepted, and I find, that the wedding between Ms Hua and Mr Giang did not take place at her home even though her marriage certificate states that it did. Like a death certificate, the particulars given in a marriage certificate cannot rise above their source. In this case, I am satisfied that the source was Ms Hua’s application for permission to marry. She submitted that on 16 September, 1998. This was some five days after her father’s death on 11 September, 1998 and so only five days before the date of their marriage on 21 September, 1998. I accept that it is Chinese tradition not to celebrate a marriage so soon after a family member’s death but, again, that something is traditional does not mean that every member of a community follows it.

I accept Ms Hua’s evidence that the plans for her marriage had been made while her father was alive. They had been to have the wedding at home. He had wanted her to go ahead with the plans. Quite apart from his wishes, Mr Giang was in Cambodia only for a short time. If they had not married then, he would have had to return to Cambodia. I accept the evidence of Ms Hua and Mr Giang that the venue of the wedding was moved to accommodate tradition so that it was not held in her late father’s home. I accept that they were married. That Ms Hua did not notify the authorities that the place of the wedding was changed does not alter my view of her at all. Her application for permission to marry does not state that she would marry at home and there is nothing in the document to suggest that she needed to advise the authorities of the place she intended to marry..

I also accept that it is customary to celebrate a wedding with some degree of fan fare. That there was no fan fare is of no consequence. Ms Hua and Mr Giang are a mature couple and each has been married before. Ms Hua has already shown herself to be a person who does not adhere religiously to custom. They were marrying at a time when there had been a death in the family. I am satisfied that Ms Hua and Mr Giang were married.

Having regard to all these matters, I am not satisfied that Ms Hua passes the character test. While it is true that the only false statement that she has made related to the number of her siblings, she did carry that misstatement through from her initial application in 1998 to her interview in 2002. I recognise that she did so out of a misguided sense of loyalty to her sister who had misstated her siblings in her own application to come to Australia. The Australian community, however, expects candour from those who wish to come to Australia. It is only in recent times that Ms Hua has acknowledged the falsity of her statement and it is too early to say that she has recovered her good character. She remains a person who is not of good character within the meaning of the Act.

The Direction – exercise of 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 that they:

“… 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.” (Direction, paragraph 2.2)

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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Ms Hua’s conduct; the likelihood that he 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 Hua’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(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 a 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;
…” (Direction, paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Ms Hua as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that her conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Ms Hua’s case, it is relevant to have regard to:

“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, paragraph 2.10(c))

General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).

Consideration must be given to the second primary consideration i.e. 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. …” (Direction, paragraph 2.12)

The third primary consideration relates to the best interests of a child. 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.” (Direction, paragraph 2.16)

The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:

“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)

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)

Before returning to that, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:

“(a)   the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
(b)     …
(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 dependant 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)     …
(f)     …
(g)     …
(h)     any evidence of rehabilitation and any recent good conduct;
(i)     whether the application is for a temporary visa or permanent visa;
(j)     the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)…” (Direction, paragraph, 2.17)

Should Ms Hua not be refused a visa on the basis of her not passing the character test?

As I have found, Ms Hua made a false statement in her application for a visa and maintained the truth of that statement for quite some time. Her misrepresentation regarded the number of her siblings and was made and maintained in interviews with the Department. I am, however, satisfied that she has been open in her other dealings with the Department. I have given my reasons for reaching that conclusion earlier in these reasons when I have considered apparent inconsistencies in her evidence. When read in the context of her written and oral evidence, I am satisfied that apparent inconsistencies or omissions in her interviews are explicable. They can be attributed to Khmer not being her first language and with her lack of understanding that she needed to be more expansive in her answers. That she was not more expansive is understandable given her lack of formal education and the lack of follow up questions enabling her to explain herself.

I am satisfied that Ms Hua’s misrepresentation regarding her siblings is not indicative of any tendency to ignore Australia’s laws requiring her to tell the truth or of the Australian community’s expectation that she will do so. While any breach of Australia’s migration laws is a serious matter, in the context of this case, I consider that it is to be regarded in the less serious range of cases that come to the Tribunal. Ms Hua made that misrepresentation in a misguided support of her sister’s earlier application to the Department but not in order to advance her own application. It is a one-off misrepresentation made by a woman of limited education, who has waited patiently for some five years since lodging her application. This is not a case in which considerations relating to the protection of the Australian community require that she not be permitted to enter Australia. She is unlikely to make further misrepresentations or to ignore its laws. The Australian community would not expect that a person who has limited formal education and who has waited patiently for a visa to join her husband but who has made one mistake to be kept from the country. There is no evidence that satisfies me that refusing her a visa would deter others from making a similar misguided misrepresentation.

There are two children to be taken into account. One is Ms Hua’s daughter, Mey Yean Hua, who is 14 years of age and the other is Mr Giang’s son, Vinh Thuan Giang, who is 16 years of age. I have presumed that Mey Yean Hua will accompany her mother to Australia. That will mean that she does not have daily association with her aunts and grandmother but she does acquire the presence of a male figure in her life in the form of Mr Giang. Vinh Thuan Giang acquires a female figure in his. He has not met Ms Hua and it remains to be seen how he will regard her.

Indeed, it remains to be seen how the family unit will operate for it has yet to come together. I am satisfied that Mr Giang and Ms Hua are confident that they have a firm bond despite the limited time that they have met in person. It is to be expected that many people would not share their confidence if they were to find themselves in the position in which Ms Hua and Mr Giang find themselves. There is, though, no universal foundation on which people build genuine and successful marriages. The foundations are myriad; love, shared goals and expectations, friendship; companionship and so it goes on. I accept that, for them, their foundation is firm and their bond genuine.

I am satisfied that the children will never live with both of their natural parents. Until the family unit comprising Mr Giang and Ms Hua and their children live together, I am unable to draw a conclusion whether it is ultimately in the children’s best interests to live in a family unit that comprises one of their birth parents, a step-parent and a child of the step parent. All that I can conclude is that it is in the best interests that their parents have the opportunity to try to establish such a family unit.

Taking all of these matters into account, I have decided that the factors relating to the protection of the Australian community do not outweigh those relating to the interests of Mr Giang and Ms Hua and their children. On balance, I have concluded that the discretion under s. 501 should not be exercised so as to refuse Ms Hua’s visa.

For the reasons I have given, I:

1.set aside the decision of the respondent dated 21 March, 2002; and

2.substitute a decision that the applicant not be refused a visa on the basis that she has not satisfied the character test within the meaning of s. 501 of the Migration Act 1958.

I certify that the one hundred and twenty-seven preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

Signed: ................................................................
P. Paczkowski Associate

Date/s of Hearing  10 and 14 April, 2003
Date of Decision  7 October, 2003
Counsel for the Applicant             Mrs R. Weinberg
Solicitor for the Applicant            Quaik & Turnbull
Solicitor for the Respondent         Mr D. Wood,
Blake Dawson Waldron

[2003] AATA 1008

7 October 2003