Hancock and Minister for Immigration and Multicultural Affairs
[2006] AATA 1100
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1100
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2006/58
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN LAWRENCE HANCOCK Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date20 December 2006
PlaceAdelaide
Decision The tribunal:
(a) affirms the decision under review insofar as it was decided that the visa applicant fails the character test under s 501 of the Migration Act 1958 (Cth);
(b) sets aside the decision under review insofar as it relates to the exercise of discretion; and
(c) remits the matter to the respondent for further consideration, and directs that the discretion to refuse to grant a spouse (provisional) sub-class 309 visa to the applicant not be exercised.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – Spouse (provisional) sub-class 309 visa – discretion to refuse to grant visa where applicant fails character test – Ministerial Direction No. 21 – primary and other considerations – other considerations can outweigh primary considerations – visa applicant made false statements in application forms for visas and in interview with migration case officer – best interests of child – relevant relationship is with visa applicant, not sponsor – issue estoppel did not arise from earlier decision of AAT affirming decision to refuse visa – decision under review affirmed insofar as it relates to character test but set aside insofar as it relates to the exercise of discretion – tribunal remits matter to respondent for further consideration with a direction that the discretion to refuse the visa not be exercised.
Migration Act 1958 (Cth), s 501(1)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Lam v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 445
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Hancock and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1205
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Jebb and Repatriation Commission (2005) 86 ALD 182
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505
REASONS FOR DECISION
20 December 2006 Deputy President D G Jarvis 1. The applicant, John Lawrence Hancock, is married to the visa applicant, Sokmey Nget, a resident of Cambodia. Ms Nget applied for a spouse (provisional) sub-class 309 visa. Her application was refused by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs on the grounds that she did not satisfy the public interest criteria set out in clause 4001 of Schedule 4 of the Migration Regulations 1994, in that she did not satisfy the Minister’s delegate that she passed the character test under s 501 of the Migration Act 1958 (Cth) (the “Act”). The delegate also exercised the discretion under subsection 501(1) of the Act to refuse to grant the visa.
2. Mr Hancock has applied to this tribunal to review the delegate’s decision.
Issues Before the Tribunal
3.The issues before me are:
(1)whether Ms Nget passes the character test under s 501 of the Act; and
(2)if not, should the discretion to refuse to grant the visa to Ms Nget be exercised.
Background
4. The following background facts are taken largely from the applicants’ witness statements (exhibits A3 and A4), and other documentary evidence, and are not in dispute.
5. Mr Hancock was born on 6 January 1939. An extract of birth certificate at exhibit A1, page 178 records that Sokmey Nget was born on 1 January 1974 in Cambodia. However, it is conceded by the applicants that Ms Nget was born under the name of Phal Leang Duong, and that her correct birth date is 6 July 1967.
6. Ms Nget grew up in a rural community, at a time when the communist regime led by the Khmer Rouge and Pol Pot caused considerable suffering to Cambodian people.
7. The rural community where Ms Nget lived was very poor. During her early life she experienced constant hunger as her parents struggled to provide enough food for all of their children. She was one of seven children. She went to school as a child for a few years, but her schooling was very limited.
8. In 1989, when Ms Nget was nearly twenty-two, her parents sent her to live with her cousin, Nget Nath, in Phnom Penh. He was the head of the household and according to Cambodian culture, Ms Nget was required to show him respect, to serve him and look after him, and to obey him on all matters. She became part of his household. As a relative who was taken into the household out of charity, she held a low status in his family.
9. Ms Nget said in her witness statement (exhibit A4):
“22. In Cambodia, every household must have a family record book. When one seeks to look for work or deal with Cambodian authorities in any way it is important to show that you have household registration.”
10. Ms Nget had not been registered in her mother’s family book, so that she did not have any kind of identification card before she went to live with Nget.
11. After she moved into Nget’s household, she started to use the name Nget. In about 2002 Nget Nath and his wife decided to change Ms Nget’s name from her birth name to her current name and Nget registered this in their family record book. Ms Nget understands that Nget had been to a fortune teller, and this caused him to change both her first name and also her date of birth, which had the effect of making her about seven years younger than she really was.
12. For thirteen years after she was sent to live with Nget, Ms Nget sold noodles in the local markets. Selling food is one of the lowest occupations in Cambodian society, and she did not earn very much money from her work.
13. In about May 2001, Ms Nget and Mr Hancock started to communicate with each other by telephone and on the internet. Ms Nget had learned about Mr Hancock when friends of her family, who were Mr Hancock’s neighbours in Adelaide, went to Cambodia for a holiday. They told her about Mr Hancock and agreed to translate so that she could communicate with him.
14. The applicants continued to communicate, and Mr Hancock went to Phnom Penh in July 2002. During his stay Mr Hancock asked Ms Nget to marry him, and she accepted.
15. Mr Hancock and Ms Nget were married in Adelaide on 27 December 2002. This occurred when Ms Nget visited Australia for about three months, arriving in Australia on 5 November 2002 and departing on 4 February 2003 (exhibit A1, page 224). Mr Hancock has travelled back and forth several times to visit his wife in Cambodia since February 2003.
16. Following her marriage, Ms Nget made a prior application for a sub-class 309 (provisional spouse) visa. This was refused in 2003, on the same grounds as her current application, namely that she did not pass the character test. The delegate who dealt with the 2003 application also refused to exercise the discretion to grant the visa. The refusal of the visa was affirmed by Deputy President Forgie in November 2004 (Re Hancock and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1205).
17. On 1 June 2005, Ms Nget made a fresh application for a provisional spouse visa. She correctly completed the relevant questions on this fresh application.
18. Mr Hancock had been living in Cambodia with Ms Nget when the decision in the previous proceedings was handed down. He returned to Australia in the following month, December 2004, and was shocked to find that his son was in the advanced stages of a cancer condition. His son died in February 2005. His death affected Mr Hancock and his other children very deeply. He returned to Cambodia soon after his son’s death, to seek comfort from his wife, and he remained with her for almost twelve months after that.
19. The applicants gave evidence of their love and devotion to each other, and of the closeness of their relationship. They have spent a considerable part of the time since their marriage cohabiting, notwithstanding that Ms Nget has not been able to come to Australia.
Evidence in Relation to Character Test
20. In September 2002, Ms Nget completed an application form to visit Australia as a tourist. She showed her name as the name she was then using, namely Sokmey Nget. She did not disclose, in answer to question 3 on this form, her birth names. Further, in answer to question 5, she gave her date of birth as the date shown by Nget in his family record book, and not her true date of birth (exhibit A1, T6, page 165).
21. Subsequently, on 5 February 2003, Ms Nget signed a form 47SP, being her application to migrate to Australia as a spouse. Question 14 of this form required her to disclose:
“Other names you are, or have been known by (including name at birth …)”.
She did not answer this question, thereby not disclosing her birth name. In answer to question 16, she again incorrectly stated that her date of birth was the date appearing in the family record book (see exhibit A1, T11, page 202).
22. Question 34 of the same form required her to disclose details of all of her family, but she failed to disclose the names of her parents or siblings (exhibit A1, T11, page 204). Notwithstanding the incorrect information in the form, she proceeded to sign the form, including the declaration at the end of the form to the effect that the information supplied was complete, correct and up to date in every detail. The declaration is prefaced by a warning that under the Act, there are penalties for deliberately giving false or misleading information. The declaration then contains an acknowledgement that if the applicant gives false or misleading information, the application may be refused.
23. In her witness statement, Ms Nget provides the following explanation for the incorrect information in the application form.
“43.Unfortunately, John and I listened to advice from other people about how to present the application. It just seemed so much easier for me to just use my new identity as a member of Nget Nath’s household than to explain that I had changed my name, gone from living at one place to another, mis-recorded dates of birth and so forth. In Cambodia people are very afraid of dealing with the government. We try and present things the way the government wants things presented. I have had very little experience in dealing with any government or government agency myself. In the past, anything of that nature, for example the registration of the family book, has been done by my male relatives.” (exhibit A4, page 5)
24.She then concedes the errors in the form 47SP, and continues:
“47.In a sense, I am not sure that those details were incorrect as I had been effectively adopted, at least according to our customs, by Nget Nath and his family. However, I acknowledge that I probably should have set out the details of my own parents and brothers and sisters at that question.” (exhibit A4, page 5)
25.She also added:
“55.I did not think that there was anything wrong with me using the name of Sokmey Nget in my visa application form as I am entitled to use that name and I continue to use that name. My error was in failing to disclose the fact that I have previously been known by another name. I also should have put my real date of birth even though that date of birth did not accord with the details in the family record book. Of course, this would have prompted the Department to ask me to make sure that I got all my papers in order and that would have been extremely difficult. Nevertheless we should have done that rather than just hoping that we could get the application processed in the most efficient way.” (exhibit A4, page 6)
26. In her oral evidence before me, Ms Nget said that the form was filled out by Mr Hancock, that her cousin Nget was there when that happened, and everyone had looked at the family book. She also said that she did not think that it was necessary to put her birth name on the form, and she believed that she had to follow what was in the family book, and had to “follow and put through the cousin” (by which I take it she meant that the form had to be lodged with the authority or approval of Nget) otherwise he would “cut her off”, and she would not have any relatives and she would be on her own (see transcript, page 16, line 41).
27. After she had lodged the form, Ms Nget was asked to attend an interview at the Australian Embassy in Phnom Penh on 21 March 2003. A record of the interview appears in exhibit A1, at T23, pages 300 – 307. In that interview, Ms Nget was asked whether she wished to change or correct anything in the form, but declined to do so. She then again referred to her name and date of birth as it appeared in the Nget family record (exhibit A1, T23, page 300.9), denied that she had ever been known by or used any other name (page 301.2) and untruthfully described Nget as her brother (page 301.9). When the case officer put to her that her real identity was Doung Phal Leang, and that she was living with her cousins in Phnom Penh and had changed her name to make it easier for her application, she denied those matters, and also denied that she knew the identity of the person who had made that allegation (exhibit A1, T23, page 306.1).
28. Whilst the evidence relevant to the latter denial is confused, I find that that denial was untrue, and that Ms Nget well knew that it was her brother Doung Lay who had revealed her birth name and family details to the Australian Embassy. This appears to follow from paragraph 50 of her witness statement (exhibit A4), and from references to Ms Nget having met her brother at the Embassy at a date prior to the date of the interview.
29. In her witness statement, Ms Nget says that she was panicky and frightened at the interview, and tried to cover up her story, and was afraid that she would lose the prospect of being with her husband. She regrets that she did not provide correct information at the interview.
30. Three days after the interview at the Australian Embassy, Doung Lay attempted to retract the information he had earlier provided to the Embassy to the effect that Ms Nget was his sister. He signed and sent to the Embassy a “letter of confession” to that effect, and falsely asserted that Ms Nget had only one name, and was a younger sister of Nget Nath (exhibit A1, T24, page 308).
31. Ms Nget says in her witness statement that Doung Lay went back to the Embassy again to retract his statement because Nget had told him to do so, and had written out the retraction for him (exhibit A4, paragraph 54). She said that she knew before her brother delivered the retraction that he was going to deliver a document to the Embassy, but denied that she knew its contents.
32. I accept the evidence of Mr Hancock, and that he genuinely regrets that he did not ensure that the visa application form lodged in 2003 was correctly filled in. It is more difficult to assess the credibility of Ms Nget’s evidence. I had requested that arrangements be made for her to give evidence by video link rather than by telephone, but I was told that this could not be arranged. However, her evidence was consistent in material respects with that of Mr Hancock, and the findings to which I refer in these reasons reflect my assessment of her credibility as best I can, taking into account the whole of the evidence before me.
33. The applicant also called Han Heu, the manager of the Cambodian Association in South Australia, to give evidence as to customs in Cambodia. Counsel for the respondent, Mr d’Assumpcao, challenged Mr Heu’s qualifications to give such evidence, because he has not lived in Cambodia for many years. However, Mr Heu’s work has brought him into contact with many immigrants from Cambodia, and I accept his evidence and think I can attach some weight to it. He says in his witness statement (exhibit A11) that it was very common in Cambodia for excess dependants to be sent to a better placed relative for support, and for people to assume a different name and identity when they moved from one family to another. He says that such decisions are made when such dependants are looking to assume another family for their support, and to suit other people rather than themselves. He also says that generally in Cambodia the younger generation are required to obey and pay respect to older people, particularly the older members of their own family unit.
Legislation
34. Subsection 501(1) of the Act provides relevantly in effect that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
35. Subsection 501(6) provides relevantly in effect that for the purposes of s 501, a person does not pass the character test if:
“(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 … .”
36. It is an offence under paragraphs 234(1)(b) and (c) of the Act, in connection with a proposed entry into Australia, to make false of misleading statements and to deliver to a migration officer a document containing a statement that is false or misleading in a material particular. The maximum penalties for such offences are substantial, namely imprisonment for ten years or 1,000 penalty units, or both.
Consideration of Whether Visa Applicant Passes Character Test
37. In her reasons for decision in the earlier proceedings involving Ms Nget, Deputy President Forgie set out, at [85] to [89], a very helpful summary of the authorities regarding what is meant by the expression “good character”. I will not repeat that summary in these proceedings. However, I particularly draw attention to the remarks she quotes from the decision of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, where he emphasises the fundamental importance of the observance of truth in dealing with officials in migration matters, particularly where the truth is known only to the person making the relevant statement.
38. I also draw attention to the extracted remarks of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, where their Honours referred to the “elastic” nature of the standard of conduct expected of applicants, so that deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that the applicant is not of good character, while similar deficiencies may suffice to justify that conclusion where the person seeks long-term entry.
39. Even though in the previous proceedings the applicants’ then solicitor conceded that Ms Nget did not pass the character test, Deputy President Forgie considered that issue. She referred to the misleading and incorrect statements provided by Ms Nget in the application form and in the interview, and also to inconsistencies in the evidence given by the various witnesses. She concluded that Ms Nget was not a person of integrity, that she had misled the Department, that she was not a person of good character, and that she did not pass the character test.
40. Counsel for the applicants, Ms McGrath, pointed out that in the previous proceedings, the visa applicant had conceded that Ms Nget does not pass the character test: [2004] AATA 1205 at [2]. She said that in the present proceedings, Ms Nget does not make this concession, but instead contends that having regard to Ms Nget’s explanation for her omissions and errors, and all of the relevant surrounding circumstances, I should find that Ms Nget does not fail the character test.
41. Ms McGrath further submitted that the applicants are not estopped by the previous tribunal from contending that Ms Nget passes the character test. As to this submission, I refer to my earlier decision in Re Jebb and Repatriation Commission (2005) 86 ALD 182, where I reviewed a number of authorities as to whether issue estoppel applies to decisions of this tribunal. I concluded as follows.
“[53] While the position has not been decided by Miller, the “truly administrative” character of this tribunal, which must arrive at the correct or preferable decision after ascertaining the relevant facts and issues and applying the relevant law in a de novo hearing, and which stands in the shoes of the original decision-maker but with power to arrive at its own determination of what is the correct or preferable decision, leads me to conclude that as a general rule, issue estoppel will not arise from decisions of this tribunal, and will only arise where the legislation conferring jurisdiction on the tribunal provides expressly or by implication that its decision in relation to particular issues will be final and binding. When considering whether issue estoppel arises from a particular decision it will therefore be necessary to consider the legislation under which the decision was made.”
42. There is nothing in the Act that precludes the visa applicant from lodging a further application for a provisional spouse visa. In accordance with my conclusion in Jebb I consider that I am not estopped by the previous tribunal decision from considering the issues before me for myself on the evidence before me in the usual way, that is, as a hearing de novo.
43. Ms McGrath pointed out that Ms Nget had no previous convictions, and submitted that even if she were prosecuted for offences under the Act for providing incorrect information, it was likely that she would receive a modest penalty in view of the circumstances in which the offences occurred.
44. Nget Nath did not give evidence in the proceedings before me. Ms Nget says that she no longer has anything to do with him or his family (exhibit A4, paragraph 58). Deputy President Forgie’s reasons for decision include a resume of the evidence given by the various witnesses in the proceedings before her. According to that resume, Nget gave evidence in the earlier proceedings. Unlike the situation before me, there is no suggestion in the resume that Nget forced Doung Lay to retract his earlier statement to the Embassy, and indeed in the earlier proceedings Doung Lay gave quite a different explanation for having done so.
45. The applicants called Doung Lay to give evidence before me by telephone. In his examination-in-chief he adopted his witness statement, which was received as exhibit A5. This witness statement acknowledges that his “confession” dated 24 March 2003 was untrue, and says in effect that Nget Nath told him to retract his earlier statement regarding the true identity of Ms Nget. In the course of his cross-examination, Mr Doung said that he could not remember signing the witness statement, and could not remember how long before the hearing he had signed it, and when asked, did not say whether he could remember whether the statement was correct when he signed it. I found Mr Doung to be a most unsatisfactory witness, and I attach no weight to his evidence.
46. Mr Hancock’s children, namely Tania Newstead, Lisa Maree Hancock and Jonathon Hancock, and Mr Hancock’s granddaughter Danielle Cutting, gave evidence at the hearing. Each of them spoke of Ms Nget’s visit to Australia between November 2002 to February 2003. During this three month period, Mr Hancock’s family witnessed the interaction between Mr Hancock and Ms Nget and all commented on the genuine love they shared for each other. They witnessed Mr Hancock and Ms Nget’s relationship at family barbeques, their wedding, and at Christmas and New Year’s Eve functions. Each family member described Ms Nget of having good character and said they approved of the relationship between Mr Hancock and Ms Nget. However, as Mr Hancock’s family have based their assessments of Ms Nget on such a limited period of time, and would have had difficulty in communicating with her due to language differences, I attach little weight to their assessment of Ms Nget’s character (although their evidence is relevant to the exercise of discretion, as mentioned below).
47. By virtue of s 499(2A) of the Act, in considering whether a visa applicant passes the character test (as well as considering whether to exercise the discretion to cancel the visa) the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a direction made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions in relation to the character test and as to refusing or cancelling a visa under s 501.
48. The application of paragraph 501(6)(c) of the Act is dealt with in paragraphs 1.7 to 1.11 of the Direction. Paragraph 1.8 relates to subparagraph 501(6)(c)(i) of the Act, that is relevantly the visa applicant’s past criminal conduct. Under paragraph 1.8 of the Direction, the decision-maker is required to take into consideration the specific matters listed in that paragraph.
49. I am not persuaded that Ms Nget would have breached the Act by using the name by which she was known at the time when she lodged her applications for visas to enter Australia; she had been using that name for many years, since going to live with Nget Nath, and there is no evidence that she believed that she was not entitled to use that name on the application forms.
50. However, I find that Ms Nget’s conduct in failing to disclose her birth names and date of birth and family details, and her answers to the case officer during her interview did constitute breaches of the Act. I have taken into account the mitigating circumstances referred to by Ms Nget. I also note that under paragraph 1.9 of the Direction, which relates to subparagraph 501(6)(c)(ii) of the Act, I am required to take into account whether the non-citizen has in connection with an application for the grant of a visa provided a “bogus” document or made a false or misleading statement. Under paragraph 11, I am to take into account recent good conduct. Ms Nget has not had recent dealings with the Australian Government, and she has continued to reside in Cambodia. There is no evidence of recent good conduct (although equally, there is no evidence of any recent bad conduct).
51. I refer again to the fundamental importance of the observance of truth in dealing with officials in migration matters, as mentioned in Lachmaiya (supra). This is reinforced by paragraph 1.9 of the Direction. Ms Nget’s failure to correct the position when she had the opportunity to do so during her interview at the Embassy makes her conduct even more serious. I find that she does not pass the character test.
Should the Discretion to Refuse the Visa be Exercised?
52. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall address the relevant considerations in the Direction in turn.
53. The three primary considerations in Direction No. 21 are as follows:
(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
First Primary Consideration - Protection of the Australian Community
54. The introduction in paragraph 2.4 to this part of the Direction refers to the Government seeking to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder to the Australian community. This introduction clearly indicates the purpose of the first primary consideration, and should be born in mind in interpreting the paragraphs that follow, and in determining their proper application to Ms Nget.
55. In paragraph 2.5, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
56. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). Paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. The examples include serious crimes against the Act, including making a false or misleading statement in connection with entry to Australia. As I have already said, Ms Nget’s conduct in filling out the two application forms and in providing false answers at the interview constituted a serious crime under the Act.
57. Paragraph 2.7 of the Direction requires decision-makers to take into account the sentence imposed for the relevant crimes. In this matter, Ms Nget has not been charged or convicted of the relevant offences, but the further criteria referred to in paragraph 2.7 should, I think, be considered in assessing the seriousness of the criminal conduct in question. In that regard, there is no suggestion that Ms Nget has been guilty of any offences apart from the breaches of the Act to which I have referred. The last such breach occurred at the time of the interview, which is now nearly four years ago. Further, the offences did not entail the element of repugnance inherit in the examples listed under paragraph 2.7(b) of the Direction.
58. I am required by paragraph 2.8(a) of the Direction to take into account any relevant factors provided by Ms Nget as mitigating factors. I accept the submission made on her behalf that she did not fail to reveal her birth name and earlier family connections because she was thereby attempting to prevent the Government from discovering that she had some earlier criminal history, or that she had entered into some earlier marriage which might have avoided her marriage to Mr Hancock. On the contrary, she used the name by which she had been known for some years; her reason for not disclosing her earlier name and birth details arose from the absence of a family record of that information, and her concern that her application for the visa would be complicated by the absence of that record. I take into account those mitigating factors in particular, as well as Ms Nget’s situation as a member of Nget Nath’s household and her remorse at her misconduct.
59. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
60. Ms Nget said in her evidence that she was sorry about not telling the Australian Embassy the truth about her previous identity. She said that she has now told the truth. She attributes her failure to tell the truth to the influence of other people, and said that now she was living alone she would provide correct and truthful information.
61. The applicants were married in December 2002. Ms Nget’s application for a visa has been refused by the earlier decision of this tribunal, and twice refused by delegates of the Minister, because of her failure to provide correct information to the Australian Government. This has been devastating both to Ms Nget and Mr Hancock. It is apparent that they both now realise the importance of being truthful in their relations with the Australian Government. I find that if Ms Nget’s application is granted it most unlikely that Ms Nget would ever be untruthful again in any dealings with the Australian Government or other authorities in Australia. I think she has learned her lesson, and knows what is expected of her by the standards of integrity that apply in this country.
62. General Deterrence The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the refusal to grant the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). Of course, any deterrence would depend on the publicity given to any refusal of a visa. In the Tribunal’s experience, it is unusual for wide publicity to be given in the media to the outcome of proceedings of this sort.
63. In the present matter, if the applicant’s visa is refused, that will presumably become known to friends and acquaintances of the applicants, and may provide some deterrence to other persons. Further, the fact of refusal would enable the Department of Immigration and Multicultural Affairs (“DIMA”) to point to an established precedent. Indeed, it could give some publicity to the precedent in order to reinforce the view which the Government has as to the seriousness of crimes against the Act. In this regard, I note the reference by Deputy President Walker in Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at [33] to criminology and social science research which indicates that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed. This consideration weighs in favour of confirming the refusal of the visa, but in the absence of evidence that that result would have a significant general deterrent effect, I attach little weight to this aspect.
64. I referred in paragraph 54 above to the purpose of the first primary consideration. Often cases before this tribunal involve persons with a significant history of serious offending, who can properly be described as criminals, but this is not Ms Nget’s position. I do not think that her entry to Australia pursuant to the visa she seeks would increase the risk to the Australian community of crime or disorder. Having had regard to all of the factors relevant to the first primary consideration, I consider that this would not in all the circumstances point to an exercise of discretion adverse to the visa applicant.
Second Primary Consideration – Expectations of the Australian Community
65. The second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
66. I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
67. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. Mr d’Assumpcao pointed out that the actions of Ms Nget, and also Mr Hancock, were calculated to deceive the Australian Government, and that the Australian community would expect to be protected against such behaviour on the part of a person who is applying to become a resident of Australia. He drew attention to the conclusions of Deputy President Forgie as to this aspect of the matter, as set out at [111] of her reasons for decision.
68. In my view, especially in view of the heightened concern about the threat of international terrorism, the Australian community would expect a non-citizen applying for a visa to enter Australia to be completely honest in providing information to Australian officials in relation to his or her identity, personal background and family members, so that the Government would be in a position to carry out all necessary character checks before dealing with the application. Ms Nget provided false and misleading information in relation to those matters. Whilst the mitigating factors to which I have referred above are also relevant to this second primary consideration, as well as Ms Nget’s position as Mr Hancock’s spouse, I must weigh those considerations against Ms Nget’s failure to correct the position when she had the opportunity to do so at the interview, and also against the importance of the information in question being complete and correct in all respects. I think that the Australian community would, on balance, expect that Ms Nget should not be granted a visa.
Third Primary Consideration – Best Interests of a Child or Children
69. The third primary consideration arises, in terms of paragraph 2.3(c) of the Direction, “in all cases involving a parental or other close relationship between a child or children and the person under consideration”. The close relationship need not be a parental relationship, as Deputy President Forgie pointed out in Re Otene and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 142 at [127].
70. Ms McGrath contended that if a visa is not granted to Ms Nget, it is likely that Mr Hancock will live in Cambodia, and that Mr Hancock’s three grandchildren will be deprived of regular contact with him and with their step-grandmother, Ms Nget.
71. This contention is contrary to the decision of Lander J in Lam v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 445 at [57] and [59], insofar as it is based on the relationship between Mr Hancock and his grandchildren, rather than Ms Nget and the grandchildren. I add with respect that his Honour’s interpretation is supported by paragraph 2.16(a), which is contained in the later provisions of the Direction that deal in detail with the third primary consideration. Paragraph 2.16 requires decision-makers to have regard to the nature of the relationship “between the child and the non-citizen”. Other references to the “non-citizen” appear in paragraphs 2.14, 2.15, and 2.16(e), (f) and (h).
72. In support of her contention, Ms McGrath identified three grandchildren. The first was a granddaughter aged eighteen. The relationship between her and Ms Nget is not relevant to the third primary consideration, because paragraph 2.13 of the Direction is expressed only to apply if the relevant child is or would be under eighteen at the time when the decision is intended to come into effect.
73. As mentioned above, one of the remaining two grandchildren, Danielle Cutting, gave evidence. She is sixteen. She clearly has a close and loving relationship with her grandfather. However, I am not satisfied from her evidence, or from any other evidence before me, that she has a close relationship with Ms Nget. Her only personal contact with Ms Nget was during Ms Nget’s visit to Australia for three months commencing in late 2002. Her subsequence sporadic telephone communications are not sufficient in my view to constitute a close relationship. The third grandchild, Ella Hancock, is a young child born in October 2005, and a close relationship does not exist between her and Ms Nget.
74. I take into account that under paragraph 2.16(b), I am to have regard to the hypothetical prospect that Ms Nget might develop a better or stronger relationship in the future with Danielle Cutting and Ella Hancock. However, on the evidence before me, I regard the development of such relationships as no stronger than a hypothetical prospect. Further, I note that paragraph 2.16(b) goes on to say that a hypothetical relationship would normally be given relatively less weight than a proven history of a relationship based on past conduct.
75. None of the other considerations referred to in paragraph 2.16 are relevant in the present case. I consider that the third primary consideration is not relevant to Ms Nget’s situation, and does not support the granting of the visa.
Other Considerations
76. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, I take into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
77. Whilst the Direction provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; and in particular, one or more of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result. I refer in this regard to Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505 at [53] – [54], where I analysed this aspect of the Direction.
78. As to paragraph 2.17(a), Ms Nget has severed her connection with Nget Nath and his family, and she has been living separately and apart from her own immediate family for many years. No members of her immediate family (apart from Mr Hancock) reside in Australia, and she has no ties to the Australian community other than through her marriage to Mr Hancock and her relationship with his family.
79. The marriage between the applicants is genuine, and although Mr Hancock was involved in the filling out of the second visa application form, there are “compassionate claims” on the part of Mr Hancock (see paragraph 2.17(b) of the Direction).
80. If Ms Nget is not granted a visa, Mr Hancock would be forced to choose between continuing to live in Adelaide and remaining close to his family, or moving to Cambodia to live with his wife. He gave evidence that his future would be bleak if he moved to Cambodia, for a number of reasons, namely:
(a)health care facilities in Cambodia are poor compared with Australia, and this is of concern to him as he is now aged 67;
(b)he would not be entitled to certain benefits which are ancillary to his age pension while he is living in Australia;
(c)his quality of life in Cambodia would be reduced due to security risks and limited ability to venture outside in the evenings; and
(d)it is unlikely that he would be able to afford travel to Australia to see his children and grandchildren with whom he has close relationships, or that his children could afford to travel over to Cambodia to see him.
81. This last matter is also relevant to paragraph 2.17(c) of the Direction, to the extent that Mr Hancock’s family can be considered under that paragraph. I was impressed with the sincerity of the support from Mr Hancock’s family for Ms Nget and for their father’s marriage to her. The members of Mr Hancock’s family who gave evidence confirmed the closeness of the family, and described the support which Mr Hancock has provided to them in the past. They were naturally concerned that he would be unable to continue to provide that support if he were to move to Cambodia in order to live with his wife. His support is all the more important to his surviving children in view of their mother’s illness.
82. Although the application is for a provisional visa, which in itself should be regarded as a temporary visa under paragraph 2.17(i), the visa will, as I understand it, mature into a permanent visa subject to fulfilling certain conditions which, in the present matter, are likely to be formalities. I have therefore addressed the relevant considerations as if the application were for a permanent visa.
83. I finally refer, under the heading “Other Considerations” to the evidence of a psychologist, Dr Paul Kassapidis, who saw Mr Hancock on 16 May 2006 and provided a report dated 30 May 2006 (exhibit A10(b)). Dr Kassapidis diagnosed Mr Hancock as suffering from adjustment disorder, with anxious affect. He related this to the rejection of Ms Nget’s visa application, and he found that Mr Hancock’s difficulties were exacerbated by the death of his son in February 2005. Dr Kassapidis’ prognosis is that in the absence of treatment or resolution to his wife’s request to be with him in South Australia, it is possible that Mr Hancock’s condition will become exacerbated and he will develop a significant anxiety or depressive disorder.
Conclusion
84. After considering all the evidence before me and balancing all of the relevant considerations in the Direction, I have decided that it is appropriate that the discretion under subsection 501(1) of the Act to refuse to grant the visa should not be exercised.
85. I am mindful that this conclusion differs from the way in which Deputy President Forgie exercised her discretion in the previous proceedings. However, I also note that after referring to the provisional nature of the visa in question, she said, at [114], that she considered that it was “too early for Mrs Sok Mey Nget to be given such a visa even though it is a temporary visa”. Further evidence has been provided to me that was not available in the earlier proceedings, and I think that this further evidence, as well as my evaluation of all of the issues before me, make the decision I have reached the correct or preferable one in this matter.
Decision
86. The tribunal:
(a)affirms the decision under review insofar as it was decided that the visa applicant fails the character test under s 501 of the Migration Act 1958 (Cth);
(b)sets aside the decision under review insofar as it relates to the exercise of discretion; and
(c)remits the matter to the respondent for further consideration, and directs that the discretion to refuse to grant a spouse (provisional) sub-class 309 visa to the applicant not be exercised.
I certify that the 86 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 17 and 18 October 2006
Date of Decision 20 December 2006
Counsel for the Applicant Ms J McGrath
Solicitor for the Applicant McDonald Steed McGrath
Counsel for the Respondent Mr P d’Assumpcao
Solicitor for the Respondent Australian Government Solicitor
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