Hancock and Minister for Immigration and Multicultural and Indigenous Affairs - [2004] AATA 1205

CATCHWORDS – IMMIGRATION – spouse visa – character test – general conduct – false statements – failure to pass character test – whether discretion should be exercised – decision affirmed.

Migration Act 1958 ss. 20, 31, 499, 501 and 501G
Migration Regulations 1994 Schedules 2 and 4

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re 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
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

DECISION AND REASONS FOR DECISION [2004] AATA 1205

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2003/553
GENERAL ADMINISTRATIVE DIVISION     )

Re JOHN HANCOCK

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  16 November, 2004
Place:  Adelaide

Decision:The Tribunal affirms the decision of the respondent dated 2 September 2003.

S A FORGIE
Deputy President

REASONS FOR DECISION

A delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) has refused to issue a Subclass 309 (Provisional Spouse) visa to Mrs Sok Mey Nget on the grounds that she does not pass the character test set out in s. 501 of the Migration Act 1958 (“the Act”). He did so in a letter delivered to her on 2 September 2003. The essence of the Minister’s reasons for refusing the visa is that she does not pass the character test because, having regard to her past and present conduct as set out in s. 501(6)(c)(ii), she is a person who is not of good character. He reached that view on the basis that Mrs Sok Mey Nget has given false information to his Department, the Department of Immigration and Multicultural and Indigenous Affairs (“Department”), and has coerced others to give false information. The Minister has also decided that Mrs Sok Mey Nget should not be given the benefit of the discretion that he has under s. 501(3) not to refuse her a visa even though she does not pass the character test. Mrs Sok Mey Nget lives in Cambodia but her husband, Mr John Lawrence Hancock, lives in Australia. He applied for review of the Minister’s decision on 8 October 2003.

On Mr Hancock’s behalf, his solicitor, Ms Nunan, conceded that Mrs Sok Mey Nget does not pass the character test. She submitted, however, that I should exercise my discretion under s. 501 so that a Provisional Spouse visa is not refused on that ground. I have decided that I should not exercise my discretion and have affirmed the Minister’s decision.

The G documents lodged pursuant to s. 501G of the Act (“G documents”) were admitted in evidence together with two witness statements by Mr Hancock and others by Mrs Sok Mey Nget, Mr Nget Nath, Ms Hy Thida and Mr Doung Lay. Also admitted were a letter from one of Mr Hancock’s children, Ms Lisa-Maree Hancock (Moseley) and another signed by all of his children, his grandchildren and his sister and brother in law. Mr Hancock gave oral evidence in support of his application as did Mrs Sok Mey Nget, Mr Nget Nath, Mrs Hy Thida, Mr Doung Lay and Ms Lisa Maree Hancock. No evidence was called on behalf of the Minister.

ISSUES

In view of the concession, the only issue in this case is whether or not the discretion in s. 501(3) should be exercised to refuse to grant Mrs Sok Mey Nget a Provisional Spouse visa.

BACKGROUND

There were a number of matters that were not in dispute between the parties. In light of that and on the basis of the evidence, I make the findings of fact set out in the paragraphs below.

Mr Hancock was born on 6 January 1939. He completed eight years of schooling and half of the ninth before leaving to take up a job with a panel beater and crash repairer. He remained in that employment until 1989 when he took up a maintenance work with the Salisbury Council. Mr Hancock remained with the council for four years before moving to Coobowie on the Yorke Peninsula. While he was there he was not employed although he did apply, unsuccessfully, for a position with the Coobowie Council. Mr Hancock’s second wife became ill while he was there and he cared for her until they separated in approximately 1998.

He has been married three times. His first was to Ms Cynthia Jarrett took place in 1959 and lasted for some 12 years until they were divorced in 1971. They had two children: Ms Tanya Karen Cutting who is now 42 years of age and who has two children, Chanelle and Danielle; and Mr Gavin John Hancock, who is aged 42 years and has neither married nor fathered children. Mr Hancock’s second and third marriages were to Ms Barbara Walters. They had two children: Mr Jonathon George Hancock, who is 28 years of age and who has neither married nor fathered children; and Ms Lisa-Maree Moseley, who is 25 years of age and married. Mr Hancock’s first marriage to Ms Walters lasted 23 or 24 years but their second on 6 January 2001 only a year before they were divorced on 5 May 2002.

All of Mr Hancock’s children live in Adelaide. He likes to see them and usually sees them at least once each week. His daughter either calls or visits him every day. They go out together and generally enjoy each other’s company. Mr Hancock also spends a lot of time with his grandchildren.

Mrs Sok Mey Nget, who was formerly known as Phal Leang Doung, was born in Cambodia on 6 July 1967. She has eight brothers and sisters, who all live in a village called East Samrong, Sub-District of Kok Prich, District Kirivong in Takeo Province. One of her brothers is Mr Doung Lay, who was born on 1 January 1975. He is married and his wife lives in Australia. Her cousin’s wife is Mrs Hy Thida, who was born on 1 March 1972. Mr Nget Nath and his wife were married in 1987 and live in Phnom Penh. They have done so since their marriage and live in her parents old house.

Mrs Sok Mey Nget first met Mr Hancock over the telephone when she was in Cambodia and he was in Adelaide. That was approximately a year before they met. Their first meeting occurred when he travelled to Cambodia on 14 July 2002. He stayed with Mrs Sok Mey Nget and her family at their home. They were engaged to be married later in July 2002. Mr Hancock remained in Cambodia for approximately a month and returned to Adelaide on 18 August 2002. He left again to visit Cambodia on 10 September 2002. On 23 September 2002, Mrs Sok Mey Nget applied for a Subclass 676 visitor visa and was granted that visa on 27 September 2002. In obtaining the visa, Mrs Sok Mey Nget did not reveal her previous name of Phal Leang Doung and stated that her date of birth was 1 January 1974 rather than 6 July 1967.

The visa entitled her to remain in Australia for three months. She travelled to Australia with Mr Hancock and arrived on 5 November 2002. Mr Hancock and Mrs Sok Mey Nget stayed together at his home. In December 2002 the electricity, gas and telephone services to Mr Hancock’s house in Adelaide were changed into the names of Mr Hancock and his wife. They were married on 27 December 2002. Three of Mr Hancock’s four children attended the wedding. The fourth was indisposed. Mrs Sok Mey Nget obtained a South Australian Proof of Age card showing her name as Sokmey Hancock and her date of birth as 1 January 1974. She returned to Cambodia on 4 February 2003 and before the expiration of her visa. Mr Hancock travelled with her.

On 6 February 2003, Mr Hancock and Mrs Sok Mey Nget went to the Australian Embassy in Phnom Penh and lodged an application for a Subclass 309 visa for her. In her application, Mrs Sok Mey Nget incorrectly stated that she had not been known by any other name and incorrectly declared her date and place of birth. In doing so, she declared herself her 8 years younger than she is. She also falsely declared that her parents were Kan Nget and Sun Ream, who were both deceased, and her brother was Nget Nath. In support of her applications, Mrs Sok Mey Nget has presented copies of a birth certificate, a Family Registration Book, a Cambodian passport, a single certificate, a Cambodian identity card, local police clearance, and an Australian marriage certificate

Also on 6 February 2003, Mr Doung Lay was interviewed at the Australian Embassy in relation to his own application for a spouse visa. He stated that his sister was Phal Leang Doung but that she was now known as Sok Mey Nget.

While Mr Hancock was still in Cambodia, he and his wife attended the Australian Embassy for an interview. That occurred on 21 March 2003. Mrs Sok Mey Nget stated that she had never been known by any other name. A few days later, on 25 March 2003, Mrs Sok Mey Nget and her brother, Doung Lay, attended at the Australian Embassy and lodged a statement. He retracted his earlier statement regarding his sister and said that Mrs Sok Mey Nget was not his sister but the sister of Mr Nget Nath.

While he is in Australia and she is in Cambodia, Mr Hancock sends his wife $100 each month so that she can contribute Nget Nath’s expenses in running the household. She has not worked since he met her in July 2002 and that accords with his wish.

THE EVIDENCE

Mrs Sok Mey Nget’s life before meeting Mr Hancock

In her statement dated 8 March 2004, Mrs Sok Mey Nget said that there were so many children living at home that her parents sent her to live with her cousin, Nget Nath, and his wife in Phnom Penh. She arrived on 8 June 1989. For the next 13 years, she earned her living by selling Nom Banh Jok i.e. vermicelli.

Her brother, Duong Lay, said of Mrs Sok Mey Nget’s leaving home:
“… my parents did not have enough (to feed) when my elder sister was little. She was brought to live with the family of Nget Nat’s who is an elder cousin. she has been living there since 1989 and she even uses his surname.” (Exhibit I)

Mrs Sok Mey Nget said in giving evidence that she had attended three years of primary school but could not recall how old she was when she left. After she left school she sold little things to make a living. When she moved to Phnom Penh, she sold noodles. She moved as there were more people there and it was easier to make a living and to find money. As she knew only her cousin in Phnom Penh, he took her into his house.

Later, Mrs Sok Mey Nget said that she had started selling noodles in 1992 and not as soon as she began to live with her cousin. Before 1989, she said, she had been living with an “aunt”, Aunt Sok, who was not related to her. That person had also cared for her cousin Nget Nath at her home in Kampot Province but she is no longer alive. Aunt Sok was Nget Nath’s aunt. Mrs Sok Mey Nget said that she lived with her aunt for a very long time but could not remember how old she had been when she first lived with her. She did not go to school when she lived with her. While she lived with her aunt, Mrs Sok Mey Nget said that she cared for her aunt and cooked for her. She did not know how many years she lived with her aunt.

Mrs Sok Mey Nget said that her mother is still alive but that her father had died in 1998 or 1996. In an interview at the Australian Embassy on 21 March 2003, she had said that both her parents had died during the time of Pol Pot. She said that she had done that as she had used the name of Nget and so was referring to her cousin’s parents, who had died during the time of Pol Pot. Mrs Sok Mey Nget said that she used the information that accorded with her current identity. As she was living with her cousin, she felt that she should use the same information that he used. She had never thought that she would marry in Australia and had changed her name before that happened.

Mr Nget Nath’s early life

Mr Nget Nath said that his parents died during the time of Pol Pot. He was cared for by one of his aunts, Chea. He lived with four of his cousins, Sarn, San, Sarim and Pros. He knew his Uncle Sok but his uncle’s wife had been dead a long time. Mr Nget Nath said that he could not recall with whom Mrs Sok Mey Nget lived when she was a baby and a child as he was very small himself. It was only when he had completed his own schooling, which lasted 16 years, that he asked her to live with him. That was in 1989. Before that, he said, Mrs Sok Mey Nget had been living with her family. He did not know whether his Uncle Sok and his wife had any children but he did know that they had adopted a number of children. Mrs Sok Mey Nget had been living with her family before he took her into his family so that she could earn her living by selling noodle soup. There were so many in her family, he said. He had chosen her over her brothers and sisters as she was pretty smart and her attitude was “OK”. She was with her family when he asked her to live with him and his wife. Her family had insisted that he took others of her siblings also but he took only Mrs Sok Mey Nget.

Family Record Books

The Family Record Book sets out the “Names of the Dependant Members in the Family” (Exhibit D). It is divided into several columns: number, family given name, relationship to the head of the family, date of birth (divided into male and female), place of birth, nationality, religion, level of education, occupation and work place, identity card number, name of mother and father, date registered. At the foot of the page are the words:
“Please take note: Head of the family must report every movement of all members by attaching it to his book. Warning not to erase, rub out or add on any writing without the permission of the authority in charge.” (Exhibit D)

The Family Record Book kept by Mr Nget Nath (G documents, page 51) lists him as the head of the family and his other details. His details and those of this wife and son, were registered on 5 August 1999. The fourth entry is that of “Nget Sokmey”. She is listed as Mr Nget Nath’s sister, who was born on 1 January 1974. Her place of birth is listed as Angkor Chey Kompot, which is the same birth place as that of Mr Nget Nath. As would be expected, her parents’ names match those of Mr Nget Nath. Her details were recorded on 23 March 2002.

The Family Record Book kept by Mrs Chab Srean, shows her as a female born in 1942 (Exhibit D). The names of her two daughters and three sons are recorded as are those of her grandson. Mr Duong Lay’s name is recorded as one of her sons but the name of Mrs Sok Mey Nget, or Duong Phalla, is not recorded. The names were registered on 8 April 1999.

Mr Hancock said that he copied the Family Record Book when he was at the house. He said that not everyone in the house is recorded in it. That is because they did not live there. One sister is not recorded because she is a paraplegic.

Mrs Sok Mey Nget’s change of name

Mrs Sok Mey Nget said in her statement dated 8 March 2004 that, after she had lived with them for 13 years, her cousin, Nget Nath, and his wife decided to change her name and to register her new name in their Family Record Book. They also made her an identification card. She had never had an identification card before that time. Nget Nath declared that she was his foster sister. The Vital Records Officials and the district authority changed her name and registered her date of birth in the Family Record Book. Her cousin did not do this on his own, she said.

In giving oral evidence, Mrs Sok Mey Nget said that her change of name occurred in 1992. According to traditional Cambodian superstitions, her brother had gone to a fortune teller who told him that her first name was not such a good name. Her cousin decided to change her name without discussing anything, including her age, with her. He had gone to the fortune teller as she was suffering a lot of illness. It was only after he had made the entries that he told her that he had made the entries in the Family Record Book. She said that she had told him that her date of birth was incorrectly recorded but he had replied that it did not really matter.

Mrs Sok Mey Nget said that her cousin changed her name so that it appeared that he was her brother as he loved her like a sister. He is the person who looks after her. That was why he added her name to the Family Record Book. Her name was added in 2002. Although he did not discuss the name change with her, Mrs Sok Mey Nget said that he had discussed it with his wife. Later, he told her that the name she had been given at birth was not good.

Mrs Sok Mey Nget said that her cousin is the head of the household and she follows everything he says. Usually, a person who does not listen to what the head of the household says is not allowed to stay in that household. After he had entered her name in the Family Record Book, Mrs Sok Mey Nget said, her cousin had made her an identity card. She carried it with her in case she had an accident or there was an emergency and her cousin could be contacted. In cross-examination, Mrs Sok Mey Nget said that she had held a student card but had not been a student for many years. Her cousin made her identity card in 2002 because he was concerned for her security.

On 15 July 2003, an officer of the Department wrote to Mrs Sok Mey Nget asking her to comment on its information that she was Phal Leang Doung who had been born in Takeo. In a letter dated 25 July 2003, Mrs Sok Mey Nget responded that she had been known by that name and continued:
“… Many years ago as my family could not support me I went to live in Phnom Penh, Who I thought was my brother but is biologically is my cousin as we had a brother sister relation as we grew up together for so long. When I was old enough my cousin Nath Nget found work for me changed my name to Sokmey Nget to be part of my cousin family through I.D card system and family Record book. I thought it was not relevant to state my family in Takeo as I didn’t grow up with them, I also wasn’t aware of how important it was to do so. I’ve taken my husband to Takeo on 3 occasions. 2 was for my cousins wedding, the other time were to visit my friends & family, I introduced everyone to my husband as brother or sister as Khmer people never refer to each other by first names so he really didn’t know who was who & I take full response ability for that as at the time my English was very limited.” (G documents, page 178)

In cross-examination, Mrs Sok Mey Nget said that she had always known that Nget Nath is her cousin and not her brother. She began to stay at his house when she was 21 but before that she had travelled a lot selling potatoes. Later, she said that she had sold potatoes for only a few days before she began to sell noodle soup. In her letter of 25 July 2003, she had not mentioned that her mother and most of her siblings still lived in Takeo. She had omitted mention of them, she said, because she was still trying to match the information in the Family Record Book.

Later in cross-examination, Mrs Sok Mey Nget said that she had not lived with her real family for very long. She had lived with her cousin in the main. She moved in with her cousin in 1989. Her name was changed in 1992 but the Family Record Book was not changed until 2002. She agreed to have her name entered in the Family Record Book. Her cousin had already changed her name by then and she had not disagreed with the change. When asked why her cousin had not asked her for her correct date of birth, she replied that he was the head of the family and usually makes decisions for her. She was not aware that her cousin had described her as his sister. Everything was organised between her cousin and his wife. Mrs Sok Mey Nget said that her name had been changed in 1992 but her cousin had not had any clear discussions with his wife until 2002 about adding her name to his Family Record Book. When asked why there was a ten year delay, she responded that her cousin was probably concerned that she would take advantage of an inheritance from his mother. The house is his mother’s but she did not want to take advantage of him. Mrs Sok Mey Nget denied the suggestion that her name was added to the record book after she met Mr Hancock.

Mrs Sok Mey Nget was asked about her not revealing her previous name when asked to record “Other names you are, or have been, known (including name at birth, …” by Question 3 on her application for a visit to Australia for tourism (G documents, pages 55). Her reply was to the effect that she never used another name. Her current name is her official name. That is why she never wrote it down; it was to avoid confusion. It was not relevant to put her other name. She recorded her name according to the Family Record Book. As she never uses her real date of birth, she had shown the incorrect date of birth in the application. Question 14 of the application for a provisional spouse visa (G documents, page 80) was in the same terms as Question 3. Mrs Sok Mey Nget had left it blank. She said that she had used only her official name. That was so even though, like Question 3, Question 14 expressly asked for her name at the date of her birth. She thought that information was irrelevant. She had been given her name a long time ago and had been known by it for a long time. Mrs Sok Mey Nget said that she knew that she was being asked for the name she was given at birth. She had not thought it relevant to use her name at birth; only the name on her card was relevant. If she revealed her birth name, it would be a mistake according to what was on the form and there would be a problem. Even when her birth name was put to her, she denied it because no-one uses that name now.

Mrs Sok Mey Nget agreed that she was given a sheet of information in Khmer before she was interviewed at the Embassy on 21 March 2003. Among other information, that sheet advised that, if questions were not answered fully and frankly, there was a considerable risk that an applicant would be found not to pass the character test. Even though she had signed the bottom of the sheet (G documents, page 161), Mrs Sok Mey Nget said, she had not read it all as she had not proceeded very far at school. Her husband had not told her what was in her sheet as it was in Khmer and he was reading his sheet written in English. When she went to the interview, she answered according to what she had filled out in the form. The interviewing officer had explained what the sheet said but she answered the questions according to what she had put in the form.

Mrs Sok Mey Nget said that she had not realised that her younger brother had used her birth name when referring to her. At the interview held on 21 March 2003, the following questions and answers were given:

“91.   This office received an allegation that your real identity is DOUNG Phal Leang and that you are living with your cousin in Phnom Penh and changed your name to make it easier for your application. Would you like to comment please?
A.     I know that person hates me so that’s me he did that. He doesn’t want me to go to live in Australia.
92.Who are you referring to?
A.     I don’t know who he is, but I know he hates me.
93.You must be thinking of someone. Who are you thinking of?
A.      The one who let my brother who processes the form for him. I asked him what they asked him. He said that they asked a lot and he was so scared and he just answered him.
94.What did that person tell you that he said at interview?
A.      My brother asked him and he said he they asked me a lot of questions and I didn’t know what to answer so I just answered anything.
95.Why would he say that you re DOUNG Phal Leang and not NGET Sok Mey?
A.      He told my brother that he was so scared he just answered that and he didn’t know that they were taping it.

96.     I am going to ask you what is your real identity?
A.     NGET Sok Mey.
97.I am going to remind you about the character provision?
A.     The person who answered was so scared he even cried when he went home because he is so nervous.
98.Is there anything else you would like to add in support of your application and I don’t accept you have been telling the truth at this interview?
A.     I have no other name. That’s all my name.” (G documents, page 168)

Mrs Sok Mey Nget said that her brother had been very upset as he has a wife in Australia and he had not known when he would be able to travel there. She assumed that he had said that she had two names as he was upset that she was going to go to Australia before he did.

In his statement dated 8 March 2004, Mr Nget Nath said that he is a teacher at the Hun Sen High School, Ta Khmao. He said that he changed and registered Mrs Sok Mey Nget’s name from Duong Phalla to Nget Sokmey. He guessed her date of birth. Mr Nget Nath made the entry on 8 April 2002 after Mrs Sok Mey Nget had been living with the family for 13 years. The district police gave him permission to make the entry, he said.

In giving evidence, Mr Nget Nath said that he had changed his cousin’s name in 1992 but had not done it officially. He officially changed it in 2002. Mr Nget Nath said that he had changed it as her birth name had not suited her character and she always felt sick with her birth name. He had seen a fortune teller and together they had decided her new name. Her new name means very safe or good luck. Her birth name means to receive luck but then to discard it. In cross-examination, Mr Nget Nath said that he had visited the fortune teller with his wife.

Mr Nget Nath said that he told the officials that he wished to add his cousin’s name to his family card in case of trouble. He organised the identity card through the police. People might give her trouble without an identity card. He was not questioned about the change of name by Cambodian officials. Mr Nget Nath said that he entered all of the details in the Family Record Book. He used his own birth place as her birth place and did the same in relation to her parents. At the time, he did not know her correct date of birth and guessed it because she was always busy selling noodle soup. Mr Nget Nath said that he showed her as his sister because he loved her like a sister and felt sorry for her. He had not entered her name in his Family Record Book before 2002 as he and his wife were still monitoring her behaviour as to her work and such like.

Mr Nget Nath said that he did not take Mrs Sok Mey Nget with him to obtain her identity card. He took her photograph with him. His wife went with him. Mrs Sok Mey Nget knew that he was going to get the card for her. A little later, Mr Nget Nath said that he had not gone for the card but his wife had done so. He and his wife had changed the Family Record Book. In cross-examination, Mr Nget Nath said that Mrs Sok Mey Nget and his wife had gone to the police to take her photograph for the identification card.

Mr Nget Nath decided to register her in his Family Record Book for two reasons. First, she had neither birth certificate, Family Record Book or an identification card. An identification card made it easy for Mrs Sok Mey Nget to travel at any time. Her being registered on the Family Record Book made it easy for his family to maintain the way they lived and to be controlled by the authorities. Mr Nget Nath expressed his second reason in the following way:
“… in Cambodia there are a number of people who believe in fortune telling. As for obvious reasons, the fortuneteller had told Sokmey that, ‘if you keep the name Duong Phalla, it is not good for you’. This was the reason why she had changed her name to Nget Sokmey in order to have good luck. …” (Exhibit F)

In giving his evidence, Mr Nget Nath explained why he had not acted before 2002. He said that no-one cares in Phnom Penh whether a person has an identity card but the police had advised him that she should have one. He was also discussing the matter with his wife. Although he is the head of the family, he usually consults with his wife. Mr Nget Nath said that Mrs Sok Mey Nget’s change of name was nothing to do with any thought to get her a visa to travel to Australia. He changed her name for her and then she met Mr Hancock. Mr Nget Nath said that he had not wanted to travel with Mrs Sok Mey Nget to her birth place as that would just add to their costs. She would have had to do that in order to be identified. The reason why he made the identification for her was that she did not really know what was going on. She did not know the law. He did not ask her whether she would like to travel back to her birth place. Mr Nget Nath then said that the police would not have permitted them to show Mrs Sok Mey Nget’s correct place of birth as it would appear strange that a brother and sister came from different places. Even though she was not his sister, he had told the police that she was for otherwise they would not have issued the identity card. He had to tell them she was his sister or the police would have asked him for money. It was also embarrassing to tell the police that her name had been changed. As it was, Mr Nget Nath paid the police some money and cigarettes to change the Family Record Book and to give Mrs Sok Mey Nget an identification card. Mr Nget Nath gave it to a personal assistant who was some sort of police person. Mr Nget Nath said that it was only just before 2002 that the police started to enforce the law that people should have identification.

In cross-examination, Mr Nget Nath said that the police had advised him to say that she was his sister as it was less complicated. He then said that he told the police that it was easier for him to describe her as his sister. Her details were those given to him by the fortune teller. It was his decision, though, to show her birth place as his birth place. The police did not care about the details that were shown provided his cousin was recorded. He decided to show her details as matching his details so that the police would not question him a lot. Cambodians went through a war and no-one really cares about places and dates of birth.

Mr Nget Nath’s wife, Mrs Hy Thida, wrote in her statement dated 8 May 2003 that she agreed to Mrs Sok Mey Nget’s being registered in her Family Record Book and was aware that she changed her name. As to why Mrs Sok Mey Nget changed her name, Mrs Hy Thida said that:
“… Originally, Sokmey’s name was Duong Phalla. Because she was sick a lot, she decided to change her name to Sokmey to hopefully bring her good luck.” (Exhibit H)

In giving evidence, Mrs Hy Thida said that she had visited the fortune teller with her husband. They sought advice about bringing Mrs Sok Mey Nget into the family and having a different name for her. The visit took place some time before 1992. They had already decided to bring Mrs Sok Mey Nget into their home. Mrs Hy Thida supposed that they had decided to take her as her husband’s sister because her last name was changed to match his. The fortune teller did not advise them to change her date of birth or her last name. Mrs Hy Thida said that she and her husband had not discussed the change of name with Mrs Sok Mey Nget and they had simply told her of her changed name. Mrs Sok Mey Nget was happy with the change in her name. She was happy because her cousin had decided to take her into his family.

As to why it took 13 years to register her in the Family Record Book, Mrs Hy Thida said:
“… The reason, that made it easy for us to change the name and to register her in our Family Record Book, was because Duong Phalla, while living in the countryside had never registered her name in the Family Record Book with her relatives. She had arrived in Phnom Penh in 1989. It wasn’t until the 8^th of April 2002 when she agreed to be registered and to make the identification card under the inspection and investigation of the authority and the district police.” (Exhibit H)

In giving evidence, Mrs Hy Thida said that her husband had shown his cousin’s details to match his own. It was probably easier to show her as his sister as they were living in the same house. She did not think that her husband had told the authorities that she was in fact his cousin and not his sister. They had taken 10 years to decide to add her name to the Family Record Book as they had to monitor Mrs Sok Mey Nget’s behaviour. Mrs Hy Thida had doubts about her when she first lived with them but after a number of years she saw that she was a good person. Her doubts arose from the fact that she hardly knew her husband’s cousin.

Mrs Hy Thida said that she had taken Mrs Sok Mey Nget to get her identification card. They went to the police station where the card is made. She took the Family Record Book with her and so the visit took place after her husband had added Mrs Sok Mey Nget’s name to it. Mrs Hy Thida said that she showed Mrs Sok Mey Nget the addition to the Family Record Book after it had been made. She could read most of it in Khmer. Mrs Hy Thida said that her husband had told his cousin that he had changed the details but his cousin had not said anything. She had just agreed to it. Mrs Hy Thida denied that the details were altered to enable Mrs Sok Mey Nget to visit Australia. It was important for Mrs Sok Mey Nget to have identification as she travelled a lot selling noodles.

The meeting between Mr Hancock and Mrs Sok Mey Nget

Mr Hancock said that he lived by himself. He spends time with his neighbours, who are Cambodian, both at their place and at Cambodian functions. They suggested that he should settle down with a woman. He told them that he was not really interested but the woman asked if she could show him some photographs of the woman who was to become his wife and of another woman. The other woman was only 21 or 22 and far too young. Mr Hancock agreed to see the photographs and told his neighbours that maybe he would go for a holiday in Cambodia. The holiday was arranged and, for three months before his departure, he ate each evening meal with his neighbours so that he would get used to the food.

By the time that he went on the holiday, he had been exchanging letters and photographs with Mrs Sok Mey Nget for about 13 months. He said at the first hearing that he thought that their first communication was by letter when he wrote to her. In an earlier statement to the Department, he said that his first communication was by telephone (G documents, page 142). Initially, he said at the hearing their communication on the telephone was very limited. All that Mr Hancock could say in Cambodian was “I love you” and “I miss you”. He would send letters in English and his neighbour who was then in Cambodia would translate them for her. His neighbour’s daughter translated her replies for him. In all, they each sent five or six letters. Their telephone calls were more frequent. They took place every month initially and then every fortnight.

Mr Hancock stayed at Mr Nget Nath’s house when he went to Phnom Penh. It was a three storey building. Mr Nget Nath’s sisters lived there with one of their husbands on the ground floor. After a week or so of sleep on separate floors, Mr Hancock and Mrs Sok Mey Nget slept together on the first floor. Mr Nget Nath and his wife slept on the second storey. They communicated through broken English and through relatives and friends, who spoke English.

He thought that they were engaged on 14 July 2002 but he bowed to his wife’s memory when she said that they were engaged on 17 July 2002. His statutory declaration of 16 July 2002 given to the Department stated he went “… to Cambodia to get engaged to a lady that I been in contact with since May 25^th 2001. Now that I have met her face to face decided that we should get married.” (G documents, page 38). He had no doubts that she was the woman for him. His children support him and tell him that they are happy so long as he is happy. She is part of his extended family and they are “rapt” he said. His wife is a wonderful cook, he said.

Mrs Sok Mey Nget said that she first saw a photograph of her husband when his neighbour visited Cambodia and showed her photographs of him. She gave his neighbour photographs of herself to take back to Mr Hancock. Her husband had sent many letters to her as well as some CDs and money. He really loves her, she said, and then he visited Cambodia. His first letter was written on 25 May 2001 and it was followed by other letters. All were written in English and she had them translated. From them, she felt that she really loved him. In cross-examination, Mrs Sok Mey Nget said that her husband had travelled to Cambodia with a friend who interpreted for them.

When they first met in Cambodia, she liked him and they proceeded with an engagement in the Khmer way. Her husband respected Khmer culture and agreed to do it the Khmer way. They were married in Adelaide. His children were happy and approved of their marrying. She will stay with her husband the rest of her life.

Mr Hancock’s knowledge of Mrs Sok Mey Nget’s identity and background

Although he was not sure in cross-examination whether it occurred on the first or second trip, Mr Hancock said in giving evidence that it was on his second trip to Cambodia that his wife told him that she had a different name when she was a baby. She did not, however, tell him what her name had been or how old she had been when she went to live with her cousin, Mr Nget Nath. Everyone called her “Mey” at the time and still do. During that second trip, they travelled to the village in which she had once lived. They attended a family wedding while they were there. In introducing people to him, Mrs Sok Mey Nget introduced them as “boung” which he understands is used to refer to either a brother or a sister. She introduced an older woman to him as “Mumma” as well as that woman’s sisters. Mr Hancock later discovered that the woman is his wife’s biological mother.

During that second trip, Mr Hancock said that he helped his wife obtain a passport. He noticed that the date of birth in her passport was not correct. She had already told him about the change of her name but had not mentioned a change in the date of her birth. He said that he had noticed that her date of birth in her cousin’s Family Record Book was not right and had queried him about it. Mr Nget Nath had said to him:
“… that he just guessed her age and chose a date of birth for her when he changed her name.
He told me he changed it because it the truth embarrassed him and his family at the church etc. He said ‘We not talk the other name’ and I did so – everyone called her Mey, I didn’t hear anyone call her Phalleang. He was very insistent, and I just went along with it.
I didn’t know much about the Cambodian culture, but I know that the man is the head of the household, and whatever the man says, goes.” (Exhibit B)

Mr Hancock completed Mrs Sok Mey Nget’s application for a visit to Australia for tourism (G documents, pages 55-62). Question 3 of that application asked for other names by which she had been known including names at birth. Mr Hancock was sure that the woman read out that question regarding other names used by his wife but he did not think that she read out the warning about answering questions accurately or about penalties for failing to do so. The form had also asked for his wife’s date of birth. He had not known what it was and did not ask her what it was. His neighbours had told her that his wife was about 35 years of age before he was ever involved with her. For all that, he put down an incorrect date of birth for her. Mr Hancock said that he did not know that the place of birth shown in the application was incorrect.

When they completed the application for a Provisional Spouse visa, Mr Hancock did not mention his wife’s real name to the woman who assisted them and who speaks Khmer; nor did his wife. Mr Hancock said that he was not sure whether that application was filled out in Australia or in Cambodia. He acknowledged that his wife’ date of birth was incorrectly shown. In addition, he acknowledged that he had not told the truth to an officer of the Department when he was interviewed on 21 March 2003. He gave his wife’s current name and her date of birth as 1 January 1974. When asked whether he had known her by any other name, he had replied, “No, just Mey” (G documents, page 168).

In giving his evidence, Mr Hancock said that he did not insist that his wife tell the truth because of the Family Record Book and the identity card being in her cousin’s name. He had no idea of the trouble that would be caused by her not telling the truth. He had followed his heart and he should have followed his head, he said. It was not right, he knew, but not that there would be so much trouble. He did not give any thought to what would happen were the Department to find out about the matter.

In his application for review lodged in the Tribunal, Mr Hancock had referred to his belief that the correct procedure had been followed regarding his wife’s change of name as family members are given away according to Cambodian custom. When he was reminded that she was 21 years of age when she left home, Mr Hancock replied that the education system means that they are like children over there at that age. In any event, she could not stay at home as her parents could not support her.

In a letter to the Department dated 29 July 2003, Mr Hancock wrote that he had told his wife that she had to fill out all documents correctly. She had to do that no matter how embarrassed she was about her family life. In cross-examination, Mr Hancock said that his wife had explained to him that people were confused when she had one name and her cousin had another. He also wrote that he had explained that as he was “now aware of such as change of name” (G documents, page 181) but acknowledged that he had known about it long before that time. Mr Hancock said that he knew of his wife’s former name before he wrote the letter on 29 July 2003.

Mr Hancock said that he gave his wife’s false name and date of birth to the SA Ambulance some time before 12 October 2002 as the invoice for the subscription was issued on that day. Mr Hancock also put his electricity, gas and bank accounts in their joint names.

Relationship between Mr Hancock and Mrs Sok Mey Nget

Mr Hancock did not regard the 28 year age difference between them (he is 65 and she is 37) as a problem whatsoever. If two people love each other as they do, age does not come into it. He does not smoke and drinks only socially and has never felt his age. The age difference does not bother his children. He helps his children and goes out with them. Outings include his attending discotheques with his 28 year old son. His daughter telephones him everyday and tells him what is happening.

Mrs Sok Mey Nget said that her husband can tell her he loves her in Khmer and she can ask him how he is and tell him that she loves him in English. She said that she has a very good relationship with her husband’s children. They call her and ask her to return to Australia as soon as possible. When she was in Australia, she saw them almost every day.

The future

Mr Hancock said that he had not given any thought to what he would do if his wife were not permitted to come to Australia. He was very concerned about living in Cambodia. Part of his concern related to his not living in Adelaide. If he had to leave Adelaide he felt that he would lose a lot of contact with his children and his grandchildren. Care of his two poodles would be a problem as would the care of his house and garden, of which he is very proud. He keeps the house spotless and the gardens immaculate. The other part of his concern related to his living in Cambodia. He does not regard Cambodia as a very safe place to live. Mr Hancock referred to the murder of two English tourists in 1993. If he goes walking by himself in Phnom Penh, his wife or a member of her family looks for him because they are concerned about his safety. He referred to the presence of armed police as a normal feature of everyday life.

Mr Hancock said that he is very stressed as a result of his wife’s being refused a visa. He can be talking to other people and “just break down and cry” (Exhibit C, page 1). His general practitioner, Dr R. Balendran, wrote a note to the effect that Mr Hancock has been a patient of his for the past five years. At the time he wrote it on 14 May 2004, Mr Hancock was, he wrote, suffering from an Adjustment Disorder with Depressed Mood. That resulted from the delay in getting his wife to come and live in Australia (Exhibit C).

Mr Hancock said that he understood that he would continue to receive some social security payments were he to live in Cambodia but he would not receive medical and dental benefits or the concessions for electricity accounts, car registration, rates and telephone accounts. He valued the additional benefits at approximately $1,200 each year but their value depended upon how sick he was. His health is good apart from his undergoing two knee operations.

Mrs Sok Mey Nget said that she wanted to be with her husband very much. If she cannot be in Australia, she wants him to be in Cambodia. She should be allowed to come to Australia as everyone was very happy at their wedding and she was very happy.

Mr Hancock’s daughter, Ms Lisa-Maree Hancock said that her father has fallen in love with Mrs Sok Mey Nget and just wants to be with her. Mrs Sok Mey Nget has brought him a lot of happiness as well as a lot of joy to the family. Ms Hancock said that she is so close to her father that she cannot imagine being without him. She lives only a kilometre from him and they have the best relationship. Ms Hancock and Mrs Sok Mey Nget are able to speak together on the telephone.

Mrs Sok Mey Nget’s applications for visa

Mrs Sok Mey Nget said that she could not reveal her real name and date of birth as they were not the details shown in the Family Record Book. That was why she did not reveal her true details to the Department’s officer at the interview.

Mr Doung Lay

Mr Doung Lay lives in Takeo Province. He studied at school for 12 years. He has twice applied for a visa to travel to Australia. At an interview at the Australian Embassy on 6 February 2003, Mr Doung Lay said that he planned to work with his brother in law, John, if he were permitted to live in Australia. John was married to his sister, Doung Phal Leang, who had changed her name to Nget Somey. His second cousin had suggested that his sister change her name to coincide with his surname “for ease of contact with the embassy” (G documents, page 95). When asked whether his sister had given false information in order to obtain a visa to Australia, Mr Doung Lay replied, “Yes, it was for ease of contact purposes” (G documents, page 95). He also stated that his sister was “around 37 years old” (G documents, page 96).

Mr Doung Lay handed the Australian Embassy a letter dated 24 March 2003 stating:

“ On 06 February 2003, I have attended an interview in the Australian embassy. I have falsified the fact that NGET SOK MEY is DOUNG PHALLANG, and who is my elder sister. The fact she has had only name is NGET SOK MEY who is younger sister of NGET NATH.
The cause I have said because elder brother of NGET SOK MEY, known as NGET NATH has arranged for me to enter and live in Australia for two years ago and I still failed to go. On the other word I have separated from wife. Am very furious with him so that I have falsified the fact.
But following I have considered and I found that the falsifying, lies are not a good deed and it is an action to be hated by the human being and social. Up until 24 March 2003, I have also decided to release my mistakes before the laws. On the other hand, if I do not confess, one day it will be released, then my mistake will be more serious. So I have no choice, besides this confession.” (G documents, page 170)

Mrs Sok Mey Nget said that her brother had told the officials at the Australian Embassy that she was not his biological sibling because they used different surnames. That made it difficult when filling out forms.

In cross-examination, Mrs Sok Mey Nget said that she had attended at the Australian Embassy on 25 March 2003 with her brother. He handed a statement to the Embassy to the effect that he wanted to retract what he had said on 6 February 2003. Mrs Sok Mey Nget denied that she had forced him to retract his statement. She said that her brother had retracted it as he had found out that his wife in Australia had a boyfriend and so he thought that what he had done was wrong. He decided to tell the Australian Embassy that she was not his sister. She said that she had gone with him to the Australian Embassy on that day as she had wanted to find out about her own application. In re-examination, she said that she had happened upon her brother. They had not gone together and they live in different areas.

Mr Doung Lay said that he had retracted his statement because he had been angry that his case had taken three years and he had just found out that his wife had a boyfriend. Mr Nget Nath had been helping with his application as he was his cousin as well as his sister’s cousin. Mr Doung Lay said that his cousin had changed his sister’s name in 1992. It was a coincidence that his sister had been at the Australian Embassy when he retracted her statement. He had prepared his letter before he went there as he knew that he no longer had any luck. There was no plan to meet his sister there. He wrote the letter as his sister had already used a different name and she had left him to live in Phnom Penh in 1989.

CONSIDERATION

Framework of Act

Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Migration 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 Provisional Spouse visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.

At the time that the delegate’s decision was made and of this review, criterion 4001 in Schedule 4 of the Migration Regulations provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, 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.”

The effect of s. 501(1) of the Act is that, if a person is unable to satisfy the Minister that he or she passes the character test, the Minister may refuse to grant that person a visa.

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)…
(c)having regard to either or both of the following:
(i)…
(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 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

Through her solicitor, Mrs Sok Mey Nget conceded that she does not pass the character test. It is relevant, however, to set out the Minister’s guidelines in relation to it in order to understand the factors that are regarded as relevant and the way in which Mrs Sok Mey Nget has not passed the test.

The Direction is 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 in this case. 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)(ii), the Minister directs decision-makers to take the following into consideration:
“1.9   In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)     whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b)     whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)     whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)     whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10     In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)     resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence with which the applicant has been charged; or
(b)     resulted in 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 Mrs Sok Mey Nget’s past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 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 9753, 27 September, 1994) and Deputy President McDonald in Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Re 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)

Mrs Sok Mey Nget’s failure to pass the character test

As I have already noted, the Minister’s delegate decided that Mrs Sok Mey Nget did not pass the character test for two reasons: that Mrs Sok Mey Nget has given false information to the Department; and has coerced others to give false information to it. Mrs Sok Mey Nget accepts that she has done the former but denies that she coerced anyone else and, in particular, her brother, Doung Lay, to do so.

I also accept and find that Mrs Sok Mey Nget gave false information to the Department. That information related to the name by which she was known from birth until approximately 1992 and to the details of her parents, date of birth and place of birth. I also accept and find that Mrs Sok Mey Nget gave the Department that incorrect information despite a direct question in her application form for a visa asking that she show any other name by which she had been known, including her name at birth.

At the interview at the Australian Embassy on 21 March 2003, I find that Mrs Sok Mey Nget when asked whether she had ever been known by or used any other name, she replied “No, only NGET Sok Mey.” (G documents, page 163). When asked for details of the family, she gave details of her cousin’s family. Later, she was asked four questions in one. They were: was her real identity DOUNG Phal Leang; was she living with her cousin in Phnom Penh; had she changed her name; and had she done that to make it easier for her application for a visa. Mrs Sok Mey Nget answered it by referring to the person who had made the allegation. A reading of the questions that follow reveals that the interviewing officer asked Mrs Sok Mey Nget her “real identity”. I find that she said that it was Sok Mey Nget. This was certainly the name by which she was known and she had no other name at the time. The interviewing officer never returned to the question, incorporated in the composite question of four questions, of whether she had changed her name. Given the form of the questions, I find that Mrs Sok Mey Nget did not give any false information to that question. Certainly, she did not answer the composite question but it was an unfair question because it was not divided into its four questions. The fact that it had to be translated from English to Khmer added to its unfairness. In view of the unfair way in which the question was asked, I find that it was not unreasonable that she did not answer it.

There was, though, no unfairness about the manner in which she had been asked the earlier two questions. I find that she gave false answers to both questions. Further there was no unfairness in the way in which she was asked about her birth name in the application form. I find that she did not disclose it despite signing a declaration that the information in her application was complete and correct and that she had not given any false or misleading information. She signed that statement on 5 February 2003. It was some six weeks later when she was given an information sheet in Khmer stating that the provision of false or incorrect information might lead to her being refused a visa. As Mrs Sok Mey Nget does not have a great deal of education, it may be that she had difficulty in understanding that information sheet. The same information, however, was given to her verbally at the beginning of the interview by the interviewing officer. Mrs Sok Mey Nget agreed that she fully understood what was being said to her in this regard. Despite that and despite her being questioned about her birth name, she did not try to amend the information she had given in her application form only six weeks before. On one occasion during the interview, Mrs Sok Mey Nget asked for an explanation of a question. This shows that she did not feel overwhelmed by the interview process and she did not claim that she felt that. Her explanation at the hearing that she could not reveal her real name and details as they did not match those in the Family Record Book does not satisfactorily explain why she did not answer a direct question about whether she had been known by or used any other name.

Mrs Sok Mey Nget has denied that she coerced her brother Doung Lay, to change the information that he had given during his interview at the Australian Embassy on 6 February 2003. At that interview, he told the truth that his sister was Phal Leang Doung but that she was now known as Sok Mey Nget. He retracted it on 25 March 2003, which was just a few days after his sister’s interview at the Australian Embassy and six weeks after his own interview. His explanation is that he retracted his truthful story and told a false story that matched his sister’s false version of events because he was angry with his wife. That does not make a great deal of sense for it did not achieve anything for him either to advance his case or to wreak vengeance on those who had hurt him.

The reasons given for Mr Doung Lay’s retraction must also be weighed with two other matters. One is the fact of their appearance at the Australian Embassy at the same time. Mrs Sok Mey Nget described it as a coincidence and yet the chances of such a coincidence occurring are fairly long given that they live in different areas and that they attended just a few days after Mrs Sok Mey Nget had been questioned about her birth name. The second is the fact that Mr Doung Lay said that Mr Nget Nath was assisting him with his application. That was the same Mr Nget Nath, who was his and his sister’s cousin. That was the same Mr Nget Nath, who had decided that his sister’s name should be changed and the change entered in the Family Record Book ten years after the change.

Taking all of these matters into account, I am satisfied that Mr Doung Lay did not retract the statement on his own initiative. Instead, I am satisfied that he did so on the initiative of another. Whether that other person was his sister, his cousin or another person is something on which I cannot make a finding. He did so in an attempt to assist his sister by telling a version of events that matched the version she had given in her application. Given that Mrs Sok Mey Nget attended the Australian Embassy with her brother when he handed in the retraction and that it was in her interests that he make that retraction, I find that she was aware that he was making the retraction. At the same time, she knew that he would be making a false statement in doing so. She was a party to his making it whether or not she put the idea into her brother’s head to make it in the first place.

I have also noted discrepancies among the evidence given by Mrs Sok Mey Nget and her cousin regarding her earlier life. Mrs Sok Mey Nget said that she spent a great deal of her younger years growing up with her cousin and his aunt. She later went to live with her cousin and his wife in Phnom Penh in 1989. Mr Nget Nath’s evidence confirms the latter statement but contradicts the earlier. His version of events is that she went to live with him and his wife in 1989 but that they did not live in the same house before that time. Although he lived with his aunt after the loss of his parents under Pol Pot, she did not live with them. That is consistent with the evidence of Mrs Hy Thida. On balance, I am satisfied that Mrs Sok Mey Nget did not live with her cousin before 1989.

The evidence as to the manner in which Mrs Sok Mey Nget obtained an identity card varied among Mrs Sok Mey Nget, her cousin and his wife. Mr Nget Nath gave two versions. One was that his wife went with him to the police station and the other that his wife had done so. Mrs Hy Thida said that she went with Mrs Sok Mey Nget to get the identification card. Mrs Sok Mey Nget said that her cousin had made her identity card. Where the truth lies in this matter, I am unable to say.

In view of the findings that I have made, I make the further finding that Mrs Sok Mey Nget is prepared to tell whatever story it takes to further her own interests. She persisted in her claim that she had used her official name when asked for earlier names because those earlier names were irrelevant. It suited her visa application to use her more recent name and it suited her if her earlier name were irrelevant. In view of all of these matters and on the basis of the evidence, I find that Mrs Sok Mey Nget is not a person of integrity. She has misled the Department with a false statement. The circumstances in which she did are such that I am satisfied that they detract from her character to the extent that she is not a person of good character. I am satisfied that she is a person who will attempt to mislead the Australian people in the future if it suits her to do so. Unlike the majority of the Australian community, she is not a person who will attempt to follow the rules of the Australian community. Her previous false statements are, in the circumstances in which they were made, such that “… it is for the public good to refuse entry” to her. They detract from it so that the Australian community would think that she should not be allowed to remain. She does not pass the character test.

The Direction – exercise of the discretion

That brings me to the discretionary aspect of the character test. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. 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 Mrs Sok Mey Nget’s conduct; the likelihood that she will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Mrs Sok Mey Nget’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 or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…” (Direction, paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Mrs Sok Mey Nget as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mrs Sok Mey Nget’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. There are no children in this case to whom I need to have regard.

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 (that is, 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)

Before returning to the balancing of the primary considerations, 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)     genuine marriage to … an Australian citizen;
(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
(f)…” (Direction, paragraph, 2.17)

Should Mrs Sok Mey Nget not be refused a visa on the basis of her not passing the character test?

Mrs Sok Mey Nget’s has given false information in her attempt to enter Australia and has been a party to another’s attempting to give false information relating to her. Taken against the background that I do not accept her evidence as to where she lived before she lived with her cousin, I am satisfied that her behaviour is part of an ongoing attitude. That is an attitude that anything that does not suit her version of events is irrelevant. It was more important to maintain consistency with the Family Record Book than to give the Department the correct information in the visa application form. She maintained that attitude at the hearing as she had maintained it earlier when she was a party to her brother’s retracting his truthful statement and replacing it with a false statement. Her attitude, therefore, is not a “one off” set of events that led to her presenting false information on her visa application and maintaining that single falsehood thereafter. Instead, she has pulled her brother into her falsehood and where the truth lies in matters such as the time at which her cousin made the entries in the Family Record Book and where she lived before 1989 are not matters in relation to which her word can be accepted without corroboration. If it suits her ends, she is likely to repeat it or to disobey Australia’s laws in the future.

As to whether her being refused a visa on the basis of her false statement and past general conduct, I consider that it could prevent or discourage similar conduct if the refusal and the reasons for it were to become known. Just how widely they would become known is not a matter on which I am able to make a finding. Consequently, I am unable to determine the extent to which refusal of a visa would deter others from similar conduct.

As for the expectations of the Australian community, I consider that it would expect that Mrs Sok Mey Nget not be granted a visa. Australians have the capacity for great compassion but they do expect people to behave with some dignity and integrity. Mrs Sok Mey Nget is not a person whose circumstances in Cambodia were intolerable and abusive before her marriage. She did not present false personal details in an attempt to extricate herself from those circumstances as some have done in the past. Instead, she married and, understandably, preferred to live with her husband. She gave false information as part of her application to obtain a visa to enable her to live with her husband. The Australian community accepts that a husband and wife should be together but also takes the view that they should make their arrangements according to law. Mrs Sok Mey Nget has not done that.

As for the other considerations I must take into account, I find that the marriage of Mr Hancock and Mrs Sok Mey Nget is genuine. Their reasons for marrying are said to be because they love each other. Mr Hancock certainly loves his wife. It may be that Mrs Sok Mey Nget loves her husband also but it is very difficult to assess that when she had to give her evidence by telephone. To deny Mrs Sok Mey Nget a visa will undoubtedly make things difficult for them. Mr Hancock is very attached to his children in Australia and to his grandchildren. His home in Adelaide is his pride and joy. He is also extremely devoted to Mrs Sok Mey Nget but finds it difficult to live in Cambodia. He finds the conditions difficult and he suffered debilitating illness on his recent visits. Concerns about his safety meant that he is not free to walk alone in Phnom Penh. Were he to live in Cambodia, he would continue to receive his pension but not his medical and dental benefits or the additional concessions he receives. I find that the separation from his wife means that Mr Hancock is suffering from an Adjustment Disorder with Depressed Mood.

I also find that Mr Hancock knew that his wife had changed her name and that the date of birth in her passport was not correct. He not only knew these things but completed his wife’s application for a tourism visa using her incorrect date of birth and not revealing her previous name. He was at least reckless with the truth even if he did not actively intend to mislead the Department when he completed the application form. To some extent, therefore, he played a part in the false statements made to the Department. His doing so was motivated by his love for her.

I note that the visa in issue is a Provisional Spouse visa. If she were granted that visa, Mrs Sok Mey Nget’s conduct would no doubt be under scrutiny during its duration. If her actions should show that there is a need to protect the Australian community from him, the Minister would be able to cancel that visa or refuse another. On the evidence that I have been given, however, I consider that it is too early for Mrs Sok Mey Nget to be given such a visa even though it is a temporary visa. Given the findings that I have made, I consider that the need to protect the Australian community from a person who will make false statements to pursue her own ends outweighs the undeniable difficulties that Mr Hancock will experience in visiting her in Cambodia and the heartache that he will suffer.

For the reasons I have been given, I affirm the decision of the respondent dated 2 September 2003.

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

Signed: ..(sgd. R. Crook) .....................................

R. Crook Associate

Date of Hearing  3 and 4 June 2004
Date of Decision  16 November 2004
Solicitor for the Applicant            Ms J. Nunan
C/- June Nunan & Associates

Solicitor for the Respondent Ms C. White
C/- Sparke Helmore