Hem and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 645

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 645

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/463

GENERAL ADMINISTRATIVE DIVISION		)
Re		BIV HEM

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date22 June 2004

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

.               D.G Jarvis
  (Signed)

Deputy President

CATCHWORDS

IMMIGRATION – character test – exercise of discretion – refusal to grant spouse visa – errors in spouse visa application form – form completed by third party – visa applicant obtained a false passport in Cambodia – visa applicant made a false application in sister’s name following exclusion from Australia for breaches of entertainment visa – dishonest answers in interview with Department – best interests of children - decision affirmed

Migration Act 1958 s 501

Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625

Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

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

Re Prasad and Department of Immigration and Ethnic Affairs (1994) 35 ALD 780

Re Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485

Wan v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 107 FCR 133

REASONS FOR DECISION

22 June 2004   Deputy President D G Jarvis

1. A delegate of the respondent decided on 19 October 2002 to refuse an application by the applicant’s wife, Pin Sopheak, for a sub-class 309 Spouse (Provisional) visa under s 501 of the Migration Act 1958 (the “Act”) on the grounds that the visa applicant did not pass the character test in s 501(6)(c)(ii) of the Act. The delegate also refused to exercise the discretion in s 501(1) of the Act to refuse to grant a visa to the visa applicant. The applicant has applied to this Tribunal for review of that decision.

2.      When this matter first came on for hearing the applicant was unrepresented, and the Tribunal adjourned the matter to enable the applicant to obtain representation.  When the matter resumed, the applicant was represented by Ms J Nunan, a solicitor and migration agent.  The respondent was represented by Ms Elizabeth Reed of the Australian Government Solicitor’s office.  The applicant, Mr Biv Hem, the visa applicant, Ms Pin Sopheak, the applicant’s mother, Phoeun Hing, and the applicant’s first wife, Patricia Bridget Maher, gave evidence in support of the application.  The respondent did not call any witnesses.

3. The Tribunal received in evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (exhibit A1).  A number of other documents were also tendered and will be referred to as appropriate in these reasons.  The Tribunal has carefully considered all of the evidence and documents submitted by the parties.

Issues Before the Tribunal

4. The applicant conceded that the visa applicant did not pass the character test under s 501 of the Act. The only issue for the Tribunal was whether the Tribunal should exercise its discretion to refuse to grant the visa in the circumstances of this case. I have decided for the reasons referred to below that this discretion should be exercised, and accordingly that the decision under review should be affirmed.

Background

5.      The visa applicant, Ms Pin, was born on 15 November 1982 at Phnom Penh in Cambodia.  She does not speak, read or write English.  She has never worked in Cambodia, except for a small amount of sewing.  She lives in a house in Phnom Penh with her parents, her two sisters, and a baby son, Jamie Seylar Hem, who was born on 22 April 2002.  The visa applicant went to school for 11 years, from when she was six years old to when she was 17 years old.

6.      On 28 October 1998, Ms Pin applied for a sub-class 420 Entertainment visa.  This was granted on 25 November 1998 and was valid until 15 January 1999.  It entitled her to work as an entertainer but only in the employment of her sponsor, and was subject to work limitation conditions 8107 and 8109.

7.      Ms Pin arrived in Melbourne on 29 November 1998.  She came with a group of entertainers who staged traditional Cambodian dance performances.  The sponsor was to arrange and pay for the accommodation, food and expenses of the group of entertainers for the time they were in Australia.

8.      Ms Pin understood that her entertainment visa was for a period of three months.  In her evidence before the Tribunal, she said that before it was due to expire, her sponsor asked her and other members of the dance group for their passports, and said that he was arranging for them to have their visas extended for a further three months.  She could not remember signing any application form for an extension of her visa.  She said her sponsor did not tell her anything about the law in Australia or the conditions on her entitlement to work while she was in Australia.

9.      Ms Pin said that she remained in Melbourne for a number of weeks but she was not sure for how long.  She said she remembers that the group also performed in Sydney, Queensland and Adelaide, but could not remember where the group went after it left Melbourne.  She said that the group returned to Melbourne a number of times, but she could not remember how many times.  She said that the group performed on weekends but did not work every weekend, and remained in Australia for more than one year, but there were more weekends when the group did not work than when it did work.

10.     Ms Pin gave evidence that not long before the group was due to perform in Adelaide, two or three of her friends asked her to try working on a farm.  She then went to work at vineyards, but said that she did not know where they were or how far away from Adelaide they were.  From computer records tendered by the respondent (exhibit R4) it appears that she went to work at Kingston Estate Wines at Kingston-on-Murray in the South Australian Riverland.  She said that she was working pruning vineyards, and had only been doing this for a few days before she was detained for working in breach of the conditions of her visa.  She said that she was working on a trial basis, and had not expected to be paid because her employer had to assess the adequacy of her work.  Nevertheless, her activities amounted to “work” within the meaning of this word in Regulation 1.03 of the Migration Regulations, which defines “work” to mean “an activity that, in Australia, normally attracts remuneration”.  After Ms Pin was detained in the Riverland, she was issued with a Bridging Visa E pending her departure from Australia.  She left Australia on 27 February 2000.

11.     Records produced by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) indicate that Ms Pin had lodged an application for a visa extension on 13 January 1999, and this was eventually refused on 14 September 2000 (exhibit A1, page 126).  However, pending consideration of the application, Ms Pin was issued with two Bridging Visas A which were issued on 13 January 1999 and 27 May 1999 respectively.  After the hearing, at the request of the Tribunal, each party provided certain further information to the Tribunal in relation to the issuing of these Bridging Visas A, and the entitlements conferred by them.  It appears from this further information that the applicant’s continued presence in Australia until the time when she left remained lawful, because the bridging visas entitled her to remain in Australia until 28 days after the notification of the refusal of her application for an extension of her entertainment visa.  However, each of the bridging visas had an 8107 work limitation attached to it.  The applicant conceded that at the relevant time this condition provided that the holder “must not change employer or occupation in Australia without the permission in writing of the Secretary” (see Condition 8107 of Schedule 8 of the Migration Regulations as then in force).  The applicant further conceded that as a result, whilst present in Australia on the two bridging A visas, Ms Pin could only work for her previous employer in the dance troupe.

12.     Under legislation then in force, Ms Pin was subject to a three year exclusion period during which she could not enter Australia.  She said that she was really upset that her sponsor had not told her this, and she found this out through friends about two weeks after she returned to Cambodia.  She said that she was later told that her application for an extension of her entertainment visa had been refused, but she could not have known this at the time, because the decision was made after she had left Australia.

13.     Ms Pin said that she really loved Australia and wanted to go back to Australia badly.  She later heard that there was another group of dancers being sponsored to go to Australia and she really wanted to be part of that group.  She admitted to the Tribunal that she knew the only way she would be able to go would be to apply for a visa in her sister’s name.  She said that she accordingly applied for and obtained a false passport in the name of her sister, Sophy, using her own photograph, at a cost of US$100.00, and on 6 December 2000, she applied for a further entertainment visa in the name of Pin Sophy.  An officer of DIMIA subsequently interviewed her about her application.  She admitted in evidence that, at first, she denied in this interview that she had dishonestly used her sister’s name in her application, but later admitted that she had done this.  It appears from DIMIA’s report in relation to this application that the department became aware that she had previously obtained an entertainment visa as part of a claimed amateur dance group from a local orphanage, and that she had been found undertaking illegal employment in the vineyards in South Australia.  The DIMIA report also says that as at February 2001, the majority of the other members of the group had not returned from Australia (exhibit A1, page 122).  The application in the name of Pin Sophy was refused on 8 February 2001.

14.     In April 2001, Ms Pin met the applicant, Mr Hem, who was visiting Cambodia. She became pregnant to him before he left to return to Australia in September 2001.  She told him in October 2001 that she was pregnant and they decided to marry.  He then returned to Cambodia on 4 April 2002 and the baby was born on 22 April 2002.  Ms Pin and Mr Hem were married on 12 May 2002.  Mr Hem remained in Cambodia with Ms Pin until (as far as he recalled) about November 2002.

15.     On 8 July 2002, Ms Pin lodged the subject application for a spouse visa using her true name of Pin Sopheak.  She said that her husband helped her fill this application in by completing the easy questions.  She said they then went to a migration agent in Phnom Penh and were with him for about three hours, and he completed the form and asked Ms Pin to sign it, which she did.

16.     The applicant’s representative, Ms Nunan, concedes that the application form for a spouse visa (exhibit A1, pages 39 - 55) contained the following misstatements:

(a)      question 6 : “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?” was answered “No”;

(b)      question 14 requiring disclosure of “[o]ther names you are, or have been, known by” was answered “N/A”; and

(c)       in answer to question 34, requiring details of “ALL” the applicant’s family, the applicant only listed the names of the persons living with her at her parents’ house, and did not disclose her other siblings.

Ms Nunan pointed out that question 6 refers to being “refused an entry permit or visa in Australia”, and the refusal of the fraudulent application in the name of Ms Pin’s sister occurred in Cambodia.  However, she also conceded that Ms Pin had been refused the application for an extension of her entertainment visa, and that accordingly, in that technical sense, question 6 had been answered untruthfully.  It is regrettable that the question is worded in the way that it is, since presumably the respondent would require the disclosure of any refusal of a visa application, whether that refusal took place in Australia or elsewhere.  Clearly, the form should be amended so that the question is not restricted to a refusal in Australia.  Ms Reed submitted that this was what the question was intended to cover because of the reference to “entry permit”, but in the Tribunal’s opinion this is not a correct literal interpretation of the question.  When forms are prepared for completion by persons who do not speak English, so that the forms need to be translated, it is, of course, essential for the language used in the forms to be simple and precise, so that there can be no room for misunderstanding.  Nevertheless, in the present case it is apparent from Ms Pin’s evidence that she understood question 6 to require the disclosure of the refusal of the application she had lodged in her sister’s name, but she did not disclose this.

17.     It also appears from Ms Pin’s witness statement (exhibit A5) and from her evidence that she realised that there were the above errors in the spouse application form after the form had been lodged, but she took no steps to correct those errors.  She tried to excuse the errors on the basis that the person assisting her to fill out the form had not asked her the specific questions about the refusal of a visa and whether she had used another name, and he had not read out the relevant declarations as to correctness and other obligations immediately preceding her signature.  She also claimed that she had told the migration agent of her other siblings, but he had told her that the computer would provide this information.  However, the applicant for a visa cannot avoid his or her personal responsibility simply because some other person has filled out the application form or assisted in this regard: Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625 at [18]; Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022 at [68] to [73].

18.     Ms Pin’s conduct was exacerbated because when she was interviewed on 20 September 2002 about the application form for a spouse visa, she gave a number of dishonest answers to the interviewing officer, notwithstanding that before the interview she apparently realised that the form was incorrect in the respects referred to in paragraph 17 above.  In particular, she claimed in the interview that she had used her sister’s name because she had changed her name and liked her sister’s name.  When asked why she applied under the identity of her sister, she said “I just liked (sic) to change my name to be like my sister” (exhibit A1, page 185).  Her answers were clearly dishonest, and she admitted this to the Tribunal, but said that at the interview she was very nervous and that was why she did not tell the truth about using her sister’s name.  This does not excuse such dishonesty.

19.     When the application was considered by DIMIA, the paternity of Jamie Seylar Hem had not been established.  However, a DNA test was later conducted and it has been established that Mr Hem is the father of the child, and this is conceded by the respondent.

20.     Mr Hem returned to Cambodia in September 2003 and stayed for five weeks.  He saw Ms Pin and their son while he was there.  He again visited Cambodia for about three weeks in May 2004, shortly before the hearing before this Tribunal.  It appears that the relationship between the parties remains strong, and Mr Hem sends money to Ms Pin from Australia, and they communicate regularly by telephone and by mail.

21.     Mr Hem was born on 4 April 1969 and came to Australia on 27 October 1983 from Cambodia with his parents when he was 14 years of age, having lived in refugee camps in Thailand for three years before coming to Australia.  He did not go to school in Cambodia because his family was hiding from the Pol Pot regime.  He went to school in Australia.  His parents, brothers and sisters all live in Australia, and he currently lives in Adelaide with his former sister-in-law, who is divorced from his brother.  She has five children from 18 to 6 years of age.  His mother lives nearby with one of his sisters, and he often sleeps at his mother’s house.

22.     Mr Hem began living with his first wife, Patricia Maher, when he was about 18 or 19.  They had four children and then the marriage broke down in about 1996, because his wife did not like him going overseas as often and for as long as he did.  They had an amicable divorce and a decree absolute was made on 4 November 1997 (exhibit A1, page 111).  There are five children of the relationship with Ms Maher, namely Aaron James Bun-Darra Hem born on 27 June 1990, Ashley Bun-Rathanie Hem born on 20 February 1992, Johnathan Bun-Roeun Hem born on 5 November 1994, Justin Bun-Lee Hem born 1 August 1996, and Narissa Ellen Hem born on 28 May 2000.

The last child was conceived after the parties were divorced and whilst the applicant was still married to his second wife.  According to their evidence, Mr Hem and Ms Maher attended a birthday party for one of their sons, and later they both became drunk and Narissa was conceived as a result of their ensuing intimacy on that occasion.

23.     Mr Hem married his second wife on 7 April 1998 and she applied to come to Australia on a spouse visa.  He was her sponsor.  However, he said that when he returned to Cambodia on a visit he found that she was seeing another man and withdrew his sponsorship.  A Decree Nisi was issued on 14 December 2001 in proceedings to dissolve this marriage (exhibit A1, page 113).

24.     Mr Hem sees his five children with Ms Maher regularly whilst he is in Australia, on most if not every weekend, and when he is not working, he sees them also on week days after school.  He also provides Ms Maher with about $70.00 per week when he is working, or $30.00 to $40.00 per week when he is off work and receiving social security benefits.  Ms Maher and the applicant’s mother, Pheoun Hing, confirmed these matters.

25. Whilst the evidence given by the witnesses called by the applicant has been summarised above, the Tribunal has some reservations as to the truthfulness of both Mr Hem and Ms Pin. The Tribunal notes in this regard that Ms Pin was most vague and evasive about the activities and movements of the dancing group whilst she was in Australia and as to what happened when she filled in the second and third application forms for visas to enter into Australia. In addition, there were direct contradictions between Mr Hem’s evidence and that of his mother, as to whether or not he repaid his mother for the cost of air fares for his visits to Cambodia. Further, his mother thought he had only been married twice and is apparently unaware of the second marriage, which is referred to in some of the papers in exhibit A1 as a contrived marriage. Whilst I record my concern about the credibility of the evidence, I will accept their evidence for the purposes of considering the exercise of the Tribunal’s discretion under s 501 of the Act, except where I make specific findings in the context of the considerations on which the exercise of the Tribunal’s discretion must be based.

Legislation

26.     Subsection 501(6)(c) provides as follows:

“501(6)For the purposes of this section, a person does not pass the character test  if:

…

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

(i)     the person’s past and present criminal conduct;

(ii)     the person’s past and present general conduct;

the person is not of good character; or …”.

Subsection 501(1) gives the Minister a discretion, and provides as follows:

“501(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

Consideration

27. In considering the exercise of its discretion under s 501 of the Act, the Tribunal must by virtue of s 499(2A), take into account as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”) (being a Direction made by the Minister for Immigration and Multicultural and Indigenous Affairs pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501). 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.

28.     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

29.     In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, 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.

30.     Seriousness and Nature of the Conduct   The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5 of the Direction).  As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious.  The relevant offences include serious crimes against the Migration Act 1958, including, but not limited to various specific offences under the Act or “presenting false or forged documents or making a false or misleading statement in connection with an entry or stay in Australia”. Section 234 of the Act creates the offence of presenting false papers, or making statements that, to the person’s knowledge, are false or misleading in a material particular or delivering to migration officers a document containing a statement or information that is false or misleading in a material particular, and the penalty prescribed includes imprisonment for 10 years or 1,000 penalty units or both. The Tribunal has set out in some detail Ms Pin’s dishonest conduct, and regards her conduct as constituting serious infringements of the Act. The Tribunal further regards these matters as serious in the context of the Direction, and in this respect refers to Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 and Re Prasad and Department of Immigration and Ethnic Affairs (1994) 35 ALD 780 (see paragraphs 33 and 38 below).

31.     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.

32.     Ms Pin has demonstrated a persistent course of conduct entailing a series of false and misleading communications to DIMIA.  She obtained and used a false passport, she lodged a fraudulent application in the name of her sister, she did not at first admit her dishonesty when interviewed about this application by the Department, she signed a defective application form for her spouse visa, and she was dishonest in her subsequent interview with the Department regarding that application.  Whilst there is no evidence before the Tribunal of any dishonest conduct after the interview on 20 September 2002, the applicant has shown a clear propensity to mislead the Australian Government in order to secure a personal advantage.  She has done so not on one isolated occasion but on a number of different occasions.  If Ms Pin comes to Australia, it is likely that she will claim social security benefits, and of course will need to deal with other government agencies and departments.  She has not had dealings with the Australian Government since September 2002, and so the absence of further infringements since then has no weight.  The Tribunal considers that at this stage, there is a substantial risk that dishonest conduct would be repeated if she were to come to Australia.  This risk does not constitute a “likelihood”, but it is noted that clause 2.5(b) is prefaced by a requirement to make an assessment of the “level of risk to the community” (see clause 2.4), and the paragraph itself includes a reference to the “risk” of recidivism.  In the circumstances an assessment of a risk of repeated misconduct falling short of a “likelihood” must be taken into account in the balance in process. 

There is no evidence before the Tribunal in relation to further relevant considerations under this sub-heading, namely the extent of rehabilitation already achieved, the prospect of further rehabilitation and a positive contribution to the community the person may be reasonably be expected to make.

33.     General Deterrence   Counsel for the respondent also relies in this connection on the comments in Re Lachmaiya (supra) and also relies on the following passage from the decision of Deputy President Wright in Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485 at [25]:

“Evidence was given that applications containing false material are common place in Cambodia and that corrupt officials and unqualified migration “agents” compound the problem.  In my opinion the only effective way of announcing loudly and clearly to prospective migrants from that country, that they must tell the truth in any application which they make, is by refusing visas to those who make use of fraudulent documents and untrue representations to gain entry to Australia.  I do not accept the proposition that such outcomes will not have a deterrent effect.  Indeed I am quite confident that consistency in this approach, except in rare cases of severe personal hardship, will drive the message home.”

Whilst the Deputy President recognises that there will be an exception in rare cases of severe personal hardship, the Tribunal does not regard the present matter as such a case.

34.     The delegate who made the decision which is under review in this matter is based at the Australian Embassy in Phnom Penh.  The Tribunal notes that she said in her reasons for decision (exhibit A1, pages 9 and 10):

“Ms PIN is only one of many who have wilfully abused the Migration system by applying for a spouse visa under a false identity as well as contriving with her spouse and falsely declaring their relationship in order to gain a migration advantage.  Numerous others in the caseload at this Embassy have repeated the type of conduct displayed by Ms PIN.  This results in considerable resources being expended in an effort to provide integrity in the program and significant delays in determining all applications.  This of course includes those who have not engaged in any unacceptable conduct but must still be subjected to rigorous and time-consuming verification.

The refusal of her spouse visa will act as a general deterrent to the community who seeks to obtain benefits that they would otherwise not be entitled to through illegal means.  The approval and therefore acceptance of Ms PIN’s conduct would send a signal to the community that there are no penalties for this and encourage further abuse of the migration program.”

Any such deterrent effect would be negated if this Tribunal were now to reverse the decision to refuse the visa.

35. Of course, this Tribunal must make its own assessment of this aspect of the Direction as part of the process of determining the appropriate exercise of the discretion conferred by s 501(1) of the Act. Nevertheless, to the extent that the above passage refers to the case load of DIMIA in Cambodia and the apparent extent of false indications with the department in Cambodia, the Tribunal can accept those statements. Quite apart from this, Ms Pin lives in Phnom Penh, and Mr Hem has family members in Cambodia, and presumably relatives and friends of Ms Pin and Mr Hem have been made aware of the refusal of the spouse visa application. This would by itself be some deterrence to other people who might be contemplating making an application for entry to Australia.

36.     In the context of general deterrence, the Tribunal regards the activities of the sponsor, Keo Darith, with some concern.  To bring a troupe to Australia pursuant to a permit for a period of some eight weeks, and then to apply for an extension of the entertainment visas only two days before the permit was due to expire, and (if Ms Pin’s evidence is correct) to retain the group in Australia for almost a further 12 months in circumstances where the troupe was apparently only performing on weekends and then for something less than 50 percent of the weekends when they remained in Australia is, on the face of it, inconsistent with a bona fide theatrical tour.  The length of stay of many overseas touring artists is much less than the total period for which this group remained in Australia.  The Tribunal also notes with concern that the report of 8 February 2001 refers to the group of dancers as “a claimed amateur dance group from a local orphanage”, and also states that the majority of other members of the group have not returned from Australia (exhibit A1, page 122).  In reaching its decision the Tribunal has taken into account Ms Pin’s illegal working activity.  To this extent, the Tribunal’s decision in this matter may also deter Ms Pin’s sponsor, and perhaps other sponsors who may be contemplating organising similar touring groups, from acting in breach of the strict requirements, as well as the spirit, of Australia’s migration laws.

Second Primary Consideration – Expectations of the Australian Community

37.     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.  As Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], there would also be a general expectation in the community that the Act would be administered fairly and humanely. The second primary consideration also appears from its terms to require the decision-maker to formulate the expectations of the Australian community not only objectively, but also with reference to the particular person involved in the relevant determination. This further increases the potential extent of diversity of views within the Australian community, and adds to the difficulty of the decision-maker in formulating the expectations of the Australian community in a particular matter.

38.     In Re Lachmaiya (supra) Deputy President McMahon said (at 155) that:

“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.”

Similar reference to the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is only known to the person making the statement, was referred to in Re Prasad (supra).

39.     In the circumstances of the present matter, whilst the Australian community might well feel sympathy for the children immediately affected by the decision, the community would on balance, in the Tribunal’s view, think it inappropriate that a visa should be granted to Ms Pin, in view of her persistent disregard of her obligations when applying for visas and in her communication with DIMIA. 

Third Primary Consideration – Best Interests of a Child or Children

40.     This criterion must be considered in light of the decision of the Full Court of the Federal Court (Branson, North and Stein JJ) in Wan v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 107 FCR 133. The Full Court said at [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.”

41.     In the present matter, the respondent concedes, and the Tribunal finds, that the best interests of all of Mr Hem’s children would be for Ms Pin to be permitted to come to Australia with her son, so that Mr Hem could live here and continue to have close contact with his five children from his first marriage as well as with his youngest child by Ms Pin.  The youngest child also would then, of course, have access to health, education and housing and other community facilities of a standard which is significantly superior to the situation in Cambodia, and also the opportunity to form a close relationship with his half-brothers and half-sister.

42.     However, whilst the Tribunal accepts that Mr Hem sees his five children by his first marriage frequently whilst he is in Australia, he has also been absent from Australia for lengthy periods from about 1993 onwards, on his evidence, and his absences since 16 April 1996 are recorded in exhibit A1 pages 182 – 183.  On the evidence before the Tribunal, this pattern may not differ substantially if Ms Pin remains in Cambodia.  It is noted that in his witness statement, Mr Hem says:

“If Sopheak cannot come to Australia to live, I would live in Australia most of the time, and go to Cambodia about once per year, for about 3 or maybe 4 months.  I want to keep up my relationship with Sopheak and our son, but I also want to live in Australia and keep up my relationship with my 5 children from my relationship with Trish.”

43.     The Tribunal also takes into account that whilst Mr Hem is in Cambodia, he will not receive any government benefits, and so would not be able to make any maintenance payments to his first wife for the benefit of his five children by her.  However, presumably this has been the case for some years now anyway, during his periods of absence from Australia.  Further, Ms Maher said in evidence that she receives the sole parent pension, and there is no reason to think that she will not continue to receive the support of the Australian social welfare system.

44.     As regards Ms Pin’s baby, he is living in Phnom Penh, the capital of Cambodia, and has access to schools and hospitals there, even though such facilities are not as readily accessible as would be the case in Australia, and the standard of the facilities available would be much lower.  Further, he is living with his mother and grandparents and two aunts in a secure family arrangement, and because of Mr Hem’s plans, will see his father for lengthy periods of time and on a regular basis.

45.     The Tribunal has also taken into account the other criteria referred to in paragraphs 2.13 – 2.16 of the Direction, to the extent that they are relevant in the present matter.

Other Considerations

46.     The Tribunal now refers 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, the Tribunal takes 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 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.

47.     There is no evidence before the Tribunal as to the extent of disruption to Ms Pins’ family if she were to come to Australia.  She would then of course be separated from her parents and her siblings, but there is no evidence as to whether or how frequently they may be able to come to Australia.  Presumably Ms Pin and Jamie could return to Cambodia for visits, and this would reduce the extent of disruption resulting from her living in Australia. 

48.     The respondent conceded before the Tribunal that the relationship between Mr Hem and his wife is a continuing marriage and as mentioned above, that Jamie is the child of Mr Hem and Ms Pin.  It is not necessary to comment on other criteria included in clause 2.17 of the Direction, and indeed a number of those criteria are not relevant in the present matter.

49.     The Tribunal is required by clause 2.2 of the Direction to have due regard to the importance placed by the government on the three primary considerations, but also to adopt a balancing process which takes into account all relevant considerations.  The Tribunal is mindful that the best interests of the children are a primary consideration, and would militate in favour of not refusing the visa; but considers that the cumulative effect of other considerations outweighs this consideration.  In all of the circumstances and taking into account all of the matters referred to above, the Tribunal has decided that it is appropriate in the present matter that the application for a spouse visa should be refused.  The decision under review is accordingly affirmed.

I certify that the 49 preceding paragraphs are a true copy
of the reasons for the decision herein
of Deputy President D G Jarvis

Signed:         .....................................................................................
  B Bills  Assistant

Date/s of Hearing  16 December 2003, 27 and 28 May 2004
Date of Decision  22 June 2004
Counsel for the Applicant         Ms J Nunan
Solicitor for the Applicant          Nunan & Associates
Counsel for the Respondent     Ms Elizabeth Reed
Solicitor for the Respondent     Australian Government Solicitor