Huynh and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 1052
•17 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1052
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/282
GENERAL ADMINISTRATIVE DIVISION ) Re
Allan (Truong) Huynh
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date17 October 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Pattama Samranbumrung.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION –- class UF partner (provisional) visa – refusal on character grounds – past and present general conduct – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – examination of the Visa Applicant’s immigration misconduct – necessity to balance the expectations and protection of the Australian community against the hardship to the Applicant – held that the best interests of the children outweigh the other primary considerations - held decision of the Respondent set aside with a direction that the discretion not to refuse the grant of a visa should be exercised in favour of the Visa Applicant.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Gonzales and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 895
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
17 October 2003 Mr RP Handley, Deputy President 1. This is an application by Huynh Truong, known as Allan Huynh, (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 16 January 2003 to refuse the grant of a class UF partner (provisional) visa to the Applicant’s spouse, Pattama Samranbumrung (“the Visa Applicant”).
2. At the hearing, the Applicant was represented by Kerry Murphy, Solicitor, of Craddock Murray and Neumann, Solicitors, and the Respondent was represented by Kiran Grewal, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the parties at the hearing. Mr Huynh and his sister Jaclyn Huynh gave evidence in person and Ms Samranbumrung gave evidence by conference telephone.
Background
3. The Applicant, Allan Huynh, was born in Saigon, Vietnam, on 18 August 1970 and is aged 33. Mr Huynh migrated to Australia on 24 August 1980 with his parents and siblings (A1). He became an Australian citizen on 24 September 1984.
4. The Visa Applicant, Pattama Samranbumrung, was born in Khon Kaen, Thailand, on 14 February 1969 and is aged 34. Her given name at birth was Prakrong Namsing (T p113). In 1991, Ms Samranbumrung married Wirat Sonchan (T p174). The marriage ended in divorce on 7 October 1994. They had one child, a daughter, Supharat Sonchan, born on 3 December 1994, who is now aged eight (T p174). Following her marriage, she used the name Prakrong Sonchan, being her husband’s family name. After her divorce in October 1994, Ms Samranbumrung changed her name to Prakrong Samranbumrung, her mother’s family name. In December 1994, she changed her name to Pattama Samranbumrung (T p109).
5. On 29 October 1996, Ms Samranbumrung applied for a visitor visa in the name of Chimkull Arunvadee, stating that she was proposing to holiday in Australia for a period of one week. On 16 December 1996, a visitor visa was granted for three months from date of arrival. On 12 April 1997, she entered Australia.
6. On 18 August 1997, Ms Samranbumrung applied for a protection visa in the name of Chimkull Arunvadee and was granted a bridging visa. In her application, she stated that her date of birth was 23 February 1963 (T6 p46). She claimed to be fearful of returning to Thailand because her life would be in danger from enemies made whilst working in the Hospitality Workers Union (T p39). On 29 September 1997, a delegate of the Respondent denied the protection visa application on the basis that Chimkull Arunvadee was not a person to whom Australia owed protection obligations under the Refugees Convention (T p66).
7. Ms Samranbumrung did not leave Australia by 3 November 1997, the date on which the bridging visa issued to Chimkull Arunvadee expired, but remained in Australia illegally.
8. Between the time of her arrival in Australia and mid 1997, Ms Samranbumrung worked without permission as a prostitute in Sydney (T p176).
9. On 9 August 1997, Ms Samranbumrung and Mr Huynh met in a Thai restaurant in Sydney (T p176). They began seeing each other on a regular basis and, about a month later Ms Samranbumrung commenced living with Mr Huynh (T p82).
10. On 12 September 1998, Ms Samranbumrung and Mr Huynh were married at Towradgi, near Wollongong (T p105). They had a son, Brandon Huynh, who was born on 21 September 1998 and is now aged five years (T p134). He currently resides in Australia with his father.
11. On 11 September 2001, Ms Samranbumrung was granted a bridging visa to make arrangements to leave Australia. On 22 September 2001, she departed Australia. On 17 December Ms Samranbumrung lodged an application for a class UF partner (provisional) visa at the Australian Embassy in Bangkok (T p73). This application was made in the name of Pattama Samranbumrung. On 29 April 2002, 2 May 2002, 18 June 2002 and 15 October 2002, she was interviewed by a Senior Migration Officer at the Australian Embassy in Bangkok (T18 p158 and T22 pp175 and 178). On 16 January 2003, Ms Samranbumrung was notified that her application had been refused on the basis of her past and present general conduct, the delegate having elected not to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T p194). Ms Samranbumrung is currently living in Thailand with her daughter Supharat Sonchan.
12. On 20 February 2003, the Applicant lodged an application for a review of this decision with the Tribunal.
Relevant Law and Policy
13. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
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; …
14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”.
15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
16. The issue for the Tribunal to determine in this case is, therefore, whether Ms Samranbumrung is not of good character having regard to her past and present general conduct. If the Tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Ms Samranbumrung.
Evidence
Allan Huynh (the Applicant)
17. Mr Huynh provided a statutory declaration dated 4 August 2003 (A1). He arrived in Australia on 24 August 1980 with his parents, two brothers and three sisters, having fled Vietnam to a refugee camp in Malaysia earlier that year. Mr Huynh’s eldest brother who had already been resettled in Australia as a refugee, sponsored the migration of their family. They moved to the Wollongong area where Mr Huynh completed his education. After High School, Mr Huynh commenced a degree in mechanical engineering at Newcastle University in 1989 and then, after two years, transferred to Wollongong University to study computer science. He graduated with a Diploma in Computer Applications in 1996. Mr Huynh was employed as a computer technician for about five years with a company in Eastwood in Sydney until late 1999. On 27 March 2000, he commenced work as a computer technician for Business Cents, a computer company based in Warrawong, a suburb of Wollongong. He still works for that company. About 95% of his work involves working in the field, solving problems or setting up networks.
18. Mr Huynh first met Ms Samranbumrung at a Thai restaurant in George Street in Sydney in early August 1997. He was there with a party celebrating the birthday of his friend. He saw Ms Samranbumrung and asked her to dance and this marked the start of their relationship. She told him she was in Australia for about four months as a student. They spoke in English because he does not speak any Thai. They met for a second time on 18 August 1997 when Mr Huynh invited Ms Samranbumrung to dinner. On this occasion, they exchanged more information about themselves and Ms Samranbumrung told him more about her background. She said she was not happy with her work although she did not tell him what the nature of that work was.
19. When they met a third time, Ms Samranbumrung told him she needed a place to stay so Mr Huynh invited her to move in with him in a shared house in Lidcombe. At that time, he learned the nature of her work - working in a massage parlour. From that time, however, she did not work, but did the household chores and looked after him. After four or five weeks, Mr Huynh and Ms Samranbumrung moved to shared accommodation at Eastwood, about five minutes from Mr Huynh’s work and then, after about three months, they moved again to Penrith where they lived in a shared unit for six months. While living at Penrith, Ms Samranbumrung became pregnant and they decided to move to Wollongong and live with Mr Huynh’s parents in Towradgi. Mr Huynh commuted from there to work in Sydney.
20. Mr Huynh said his wife introduced herself as Pattama when they first met in Sydney. He only found out that she had used another name on entry into Australia at the time she became pregnant when they were living in Penrith. She told him how she had used a false passport to enter Australia. When it was pointed out to Mr Huynh that Ms Samranbumrung used her false name in the Residential Tenancy Agreement for the unit in Penrith, he acknowledged he probably would have known of her use of this name from November 1997. Ms Samranbumrung told him that she was pregnant in early February 1998 and they then approached a migration agent in Marrickville whose name Ms Samranbumrung found in the Thai newspaper. The migration agent advised them to wait until after the child was born and then for Ms Samranbumrung to apply for a visa. Mr Huynh said although he had some idea of his wife’s migration status from this time, he did not understand the seriousness of her position and was not aware until much later that there would be a problem in her obtaining a visa.
21. After moving to live with Mr Huynh’s parents in Towradgi, Mr Huynh and Ms Samranbumrung worked things out and decided to marry. They were married on 12 September 1998, rather late, because of Mr Huynh’s Chinese background. On 21 September 1998, Ms Samranbumrung gave birth to a boy, Brandon Huynh. After the birth of the child, Mr Huynh said he and his wife wanted to regularise her status but decided to delay this because, at the time, Mr Huynh’s father was seriously ill with cancer and because they wanted Brandon to be old enough and healthy enough to accompany Ms Samranbumrung back to Thailand. They approached another migration agency, Wi Marn International Migration Services for assistance but did not proceed immediately because of Mr Huynh’s father’s deteriorating condition. The agent did tell them that there might be complications because of Ms Samranbumrung’s overstaying her visa and using a false identity, but Mr Huynh did not understand the significance or appreciate the difficulties that would arise.
22. After Brandon was born, Mr Huynh and Ms Samranbumrung moved to a house owned by Mr Huynh at Coniston. Ms Samranbumrung then returned to Thailand with Brandon in September 2001. Mr Huynh has subsequently sold the house at Coniston to pay for the costs associated with his wife’s visa application and for his travel to Thailand. Mr Huynh has been to Thailand on four occasions: in March/April 2002, in June/July 2002 and in October 2002, at times when Ms Samranbumrung was called for interview at the Australian Embassy in Bangkok; and mostly recently in July 2003. Mr Huynh said because he has only worked for Business Cents for about two years, most of the time required for his visits to Thailand has been in the form of unpaid leave. Generally, Ms Samranbumrung meets him at the airport in Bangkok and they then stay in Bangkok for a few days before going to Ms Samranbumrung’s home-town of Ban Fang, where they have spent most of their time staying with Ms Samranbumrung’s parents. Ban Fang is a small town about half an hour by bus from Khon Kaen which is about six to seven hours by bus from Bangkok.
23. On Mr Huynh’s visit to Thailand in October 2002, Mr Huynh and Ms Samranbumrung decided that Brandon should return to Australia with Mr Huynh both in readiness for going to school and learning English, and also because of his health. He suffered from skin infections following mosquito bites. Brandon scratched the bites and in the dusty conditions they became infected and did not heal. Even after Ms Samranbumrung took Brandon to the local hospital, there was no significant improvement. Since Brandon has been back in Australia, his skin condition has improved a lot. The infections have healed although he still has scars. Mr Huynh took him to see a doctor when they arrived back in Australia.
24. Brandon is now attending pre-school prior to starting school. His fifth birthday was on 21 September 2003. Mr Huynh speaks Cantonese with Brandon, which is the language that Mr Huynh and his family speak at home. His family is of Chinese Vietnamese background, his grandfather having been born in China and having then migrated to Vietnam. Their Chinese background is important in their family although they also speak Vietnamese. Apart from speaking Cantonese, Brandon is also doing well at learning English. Mr Huynh and Brandon are living with his mother at the family home in Towradgi where his sister and her two children are also currently living. The house has four bedrooms and Mr Huynh and Brandon share a bedroom. Mr Huynh said his family is very close, mostly living in the Wollongong area and getting together regularly for meals at the weekend. Mr Huynh and his sister have placed a deposit to purchase a block of land about 20 minutes south of where they are currently living, with a view to their building a duplex on the land to accommodate their families. Settlement of the purchase awaits the subdivision of the land being concluded.
25. Mr Huynh said he maintains regular telephone contact with his wife. Initially, after Brandon returned to Australia with Mr Huynh, he spoke on the phone to his mother in Thai, but he has now forgotten much of the Thai and tends to speak to her in Cantonese mixed up with English. Ms Samranbumrung also speaks Cantonese although she can maintain a reasonable conversation in English. Mr Huynh said Brandon is very attached to Ms Samranbumrung’s daughter, Supharat, who will be nine this year and who is also living with Ms Samranbumrung and her parents in Ban Fang where she is at school. Mr Huynh said he has had no contact with Supharat’s father and neither has Ms Samranbumrung, except to obtain Mr Sonchan’s consent to Ms Samranbumrung taking their daughter overseas. Mr Sonchan is a chef and works elsewhere in Thailand and sometimes overseas. Ms Samranbumrung’s daughter learns some English in school but otherwise only speaks Thai. Mr Huynh’s communication with her has therefore been limited because he does not speak Thai.
26. Mr Huynh said he has not talked to his wife about what they will do if her application for a visa is refused. He does not want to move to Thailand because he does not speak Thai, which uses a different script and would, therefore, be difficult for him to learn.
Pattama Samranbumrung (the Visa Applicant)
27. Ms Samranbumrung provided an undated statement faxed on 5 August 2003 (A4). She and her daughter, Supharat Sonchan, who will be nine on 3 December 2003, are currently living with her parents in Ban Fang near Khon Kaen. Ms Samranbumrung said her former husband initially paid her some money for the support of their child for the first year after her birth, but has not done so since. She has custody of their daughter and her former husband has given his written consent to their daughter accompanying Ms Samranbumrung to Australia.
28. Ms Samranbumrung said after leaving school in 1985, she helped her parents working on their rice farm for two years. Her name at this time was Prakrong Namsing. In 1997, Ms Samranbumrung went to Bangkok to look for work. She worked as a receptionist at the Sukhumvit Bowling Centre for about one and a half years until the middle of 1989. At that time, there was a possibility of Ms Samranbumrung getting a job in Taiwan with a company making bicycle wheels, but this fell through. However, her cousin, Yupin Samranbumrung, asked whether she would like to work in Japan. Ms Samranbumrung thought about this while returning to help her parents on their rice farm in about August 1989. After about a month, Ms Samranbumrung obtained a job as a waitress in the Kosa Hotel in Khon Kaen for a few months before returning to Bangkok to stay with her cousin Yupin. Yupin and her boyfriend then arranged for Ms Samranbumrung to travel to Japan where she worked as a receptionist in a karioke club.
29. Ms Samranbumrung said she went to Japan in order to work and save money to help support her family. Yupin and her boyfriend made all the arrangements and paid all her expenses for travelling to Japan in consideration of which Ms Samranbumrung agreed to pay them 500,000 yen. On arriving in Japan, Ms Samranbumrung was met at Narita Airport by a person who worked with Yupin who gave her a Malaysian passport for use in Japan. Ms Samranbumrung said she could not remember the name in that passport. Ms Samranbumrung worked in a karioke club as a receptionist while sharing an apartment with other Thai girls. During this period, she was able to save 500,000 yen to repay Yupin. After repaying this, Ms Samranbumrung moved to another apartment with the Thai girls and worked in another karioke club until about December 1990. She then moved to Osaka where she again worked in a karioke club for a period of about six months until June 1991 when she returned to Tokyo to work in a karioke club until early 1992. Ms Samranbumrung said she worked as a receptionist/hostess in these clubs and was not allowed to go out with customers.
30. In about April 1992, Ms Samranbumrung’s mother became ill and she decided to return to Thailand. However, her original Thai passport had been taken from her when she was given the Malaysian passport on her arrival at Narita Airport, so she went to the Thai Embassy in Japan to obtain a temporary Thai passport to enable her to return to Thailand in her own name of Prakrong Namsing. To obtain a temporary passport, Ms Samranbumrung had to obtain her house registration card from Thailand. With her temporary passport, she went to the Department of Immigration in Tokyo and told them what had happened and made an application which enabled her to leave the country and return to Thailand.
31. Ms Samranbumrung said she managed to save about 200,000 baht while in Japan. She used this money to buy a farm with her parents as well as a water pump and a small machine for digging the earth. Not long after returning to Thailand, Ms Samranbumrung met her former husband, Wirat Sonchan, and about two or three months later, in June 1992, they were married. After the marriage, which was not initially officially documented, Ms Samranbumrung stayed with her parents and did not work. Official marriage documents were completed in August 1993 and Ms Samranbumrung changed her name to Prakrong Sonchan. After the marriage, her husband went overseas to look for work and the remainder of Ms Samranbumrung’s money – more than 100,000 baht – was spent in paying his expenses.
32. After they were divorced and when Ms Samranbumrung’s daughter was three months old, she got a job in Khon Kaen as a waitress at the Sofitel Hotel. She changed her family name to Samranbumrung, her mother’s name, and later, in about December 1994, she changed her first name “Prakrong” to “Pattama”, a name she preferred. Ms Samranbumrung worked at the Sofitel Hotel for about 14 months, first as a waitress and later as a receptionist, returning to her parents’ home every night. Khon Kaen is about 22 kilometres from Ban Fang and takes about half an hour by road.
33. Ms Samranbumrung said in the middle of 1996 she went to Bangkok looking for work. Initially, she worked at the Star Bowl Centre for about three months before getting a job at the Serelina Karioke Club as a receptionist where she worked until March 1997. Ms Samranbumrung said she went to work in Bangkok because she could earn significantly more there. She would return home to Ban Fang once a month to see her daughter who, in the meanwhile, lived with her parents. The distance from Khon Kaen to Bangkok is 440 kilometres and takes about six hours.
34. In early 1997, Ms Samranbumrung was approached at the nightclub by two ladies whom she knew by their nicknames of “Pom” and “Dan” who asked whether she would like to go overseas to work. They said she would work in a massage parlour. Ms Samranbumrung said she had previously been approached by two Thai women to work in a brothel in Singapore but when she was taken to meet the Singaporean man who was making the arrangements, he did not like her and said she was too old. Ms Samranbumrung said she had not previously worked as a prostitute in Bangkok. When Ms Samranbumrung expressed interest to Pom and Dan about working overseas, they took her to meet a married couple known as “Noi” to make the necessary arrangements. They asked to see her passport. When they saw this, they said it would be very difficult to obtain a visa for a person living in a remote area of Thailand and so they would provide her with another passport with a different identity.
35. Ms Samranbumrung said that, at first, she had thought she could use her real passport, but by the time she realised that she could not do this, she was already committed to working in Australia. The total cost to her of the Nois making the necessary arrangements, including obtaining the false passport, was approximately Aus$25,000. Ms Samranbumrung said she was concerned about using a false passport but needed money to support her daughter and family. Her salary in Bangkok, of about 600 baht a month, equivalent to Aus$300, did not allow her to save. Under the agreement with the Nois, Ms Samranbumrung could pay her expenses and still send Aus$500 a month back to her family in Ban Fang. Her mother would continue to look after her daughter while Ms Samranbumrung was in Australia. Ms Samranbumrung knew that using a false passport to enter Australia was not legal but the agreement that she had entered into to come to Australia was only for 15 months so she planned to return home after that, believing she could save enough money in the meantime.
36. In cross-examination, Ms Samranbumrung said she did not know where her cousin Yupin was at that time and did not consider going back to a similar job in Japan. She acknowledged that she had learned to read and write in Japanese for about four months in Japan – taught by a Japanese woman at home – in order to undertake her work as a receptionist which included serving whisky to guests and sometimes sitting and chatting with them. She could also speak some English.
37. Ms Samranbumrung said she arrived in Australia in April 1997, staying overnight in Perth en route, and then flying to Sydney the next morning. She travelled with three other Thai women and they were met by their boss who was from the Chinatown area. Ms Samranbumrung said she knew she was coming to work in a massage parlour and that sometimes the customers would want to go out with her. She thought that the brothel was probably illegal but she did not know directly. According to the agreement that she had entered into in Bangkok with the Nois, they were to organise a work permit for her in Australia for 15 months.
38. Ms Samranbumrung said she worked at the massage parlour at 429 Pitt Street, living for the first two or three weeks in an apartment about a ten minute walk from work. Her Thai boss organised a refugee visa application for her. He completed the form and told her to sign it and said the fee of $500 would be deducted from her pay. He said the visa would help her stay in Australia. At that time, she did not read English well enough to understand the form and nobody read the form to her in Thai before she signed.
39. Ms Samranbumrung said she worked at 429 Pitt Street for about four months. For the first two months she was paid $500 a month to send home to her family in Thailand, but she was not paid this after that, so she stopped working for them. She remembered one night when the police arrived to check the premises. This was during the time when her employer had taken her passport to organise her visa, so she had to leave the premises while the police were there and was only taken back to 429 Pitt Street about one to two weeks later.
40. Ms Samranbumrung said she met Mr Huynh in early August 1997 at a Thai restaurant in Sydney where he was attending a friend’s birthday party. He gave her his business card and asked her to phone him, which she did one to two weeks later. He invited her to meet him for dinner, they met and talked and she told him that she was not happy with her boss who had not complied with his agreement. She wanted to return to Thailand but she did not have a passport and was too scared to go to the police. She told Mr Huynh that she was looking for somewhere to stay so he invited her to live with him and persuaded her to remain in Australia. Initially, she lived with Mr Huynh in his friend’s house in Lidcombe before moving to an apartment in Eastwood belonging to a friend of Mr Huynh’s boss. From there, they moved to Penrith for six months.
41. About four months after they began to live together, Ms Samranbumrung became pregnant. They went to see a migration agent for advice because she wanted them to live together legally as soon as possible. However, they did not have any money and they needed a lot of money for her to apply. Ms Samranbumrung said she was aware that she was not in Australia legally. Nevertheless, they decided that she should give birth first and then organise for her to return to Thailand and to apply for a visa from there.
42. Ms Samranbumrung said after living in Penrith for about six months, they went to live with Mr Huynh’s parents in Towradgi. They were married in Wollongong on 12 September 1998 and, on 21 September 1998, their son Brandon was born. At the end of the year, they moved to Mr Huynh’s house at Coniston. Ms Samranbumrung said she had not worked since finishing work at 429 Pitt Street, instead looking after the house for her husband. Mr Huynh sent money to her family in Thailand for their support because she was not working. They delayed obtaining further migration advice for a number of reasons: Mr Huynh had changed jobs and wanted to get settled in his new job; his father was terminally ill with cancer; and they needed to save some money to pay for her visa application. It was not until about July 2001 that they obtained further immigration advice from a Thai speaking migration agent who advised her to return to Thailand and apply for a visa from there. Because Ms Samranbumrung did not have a passport in her real name, she went to the Thai Consulate in Sydney who in turn referred her to the immigration office at the Rocks, and about a week later she was granted a temporary visa to enable her to return to Thailand. She therefore returned to Thailand on 22 September 2001 taking Brandon with her.
43. Mr Huynh came to Thailand in October 2002 to collect Brandon and take him back to Australia. Mr Huynh has visited her in Thailand four times in all and sends money monthly for her support. Ms Samranbumrung said Brandon had suffered badly from mosquito bites which had become infected ulcers on his skin, sometimes causing fever and shock. She described one occasion when she took him to the hospital where he received fluid intravenously. He was allergic to mosquito bites and, in her view, it is better for him to live in Australia. Ms Samranbumrung said she talks to Brandon on the phone every Saturday or Sunday and whenever she misses him. They used to talk in Thai but, since he has been in Australia, he speaks Cantonese and so she now speaks this with him. Ms Samranbumrung learned Cantonese from Allan and from Mr Huynh’s mother and sister.
44. Ms Samranbumrung said she does not think it would be difficult for her daughter Supharat to be separated from Ms Samranbumrung’s mother. She and her mother have discussed this and agreed that it is better for Supharat to be with Ms Samranbumrung and her family and that Supharat will have a better future in Australia. Supharat’s father has never visited her. He has given his consent to her going to Australia and Supharat would have better opportunities for education there.
45. Ms Samranbumrung said she never realised that using a false passport and making false applications were serious matters at the time the agents in Thailand made these arrangements for her. It was only later that she realised that allowing them to do this was a serious mistake. She did not mean to take advantage of Australia and accepts responsibility for entering into the agreement with the Nois which led her to entering Australia using the false passport and working illegally. If she is not granted a visa, Ms Samranbumrung does not know what she will do. It would be very hard for Mr Huynh to live and work in Thailand because he does not speak Thai.
Jaclyn Huang
46. Ms Huang, who is Mr Huynh’s younger sister, provided a statutory declaration dated 22 July 2003 (A5). She arrived in Australia with her brother, other siblings and her parents on 24 August 1980. They are a close family. Her other brother and two sisters live nearby and they all meet regularly. Ms Huang said she is currently living at her mother’s house with her two twin boys who are aged 10, her mother and Mr Huynh and his son Brandon. She and Mr Huynh and another brother in Brisbane have put a deposit on a block of land nearby on which they intend to build.
47. Ms Huang said she first met Ms Samranbumrung a few months after she and Mr Huynh began living together.. However, she did not know that Ms Samranbumrung had any problems in relation to her immigration status until about the time of Brandon’s birth. They used to meet once or twice a week for “sister talk” - chatting and discussing problems. In her statutory declaration, Ms Huang said she had observed her brother and Ms Samranbumrung together and is satisfied they are a genuine couple.
48. Since Ms Samranbumrung has returned to Thailand, Ms Huang has maintained contact with Ms Samranbumrung and sometimes speaks to her on the phone when her brother phones her in Thailand. In May 2002, Ms Huang took her mother to visit Ms Samranbumrung and her family in Thailand, staying for seven days in Ban Fang and then spending the rest of their time in Bangkok. Ms Huang said she observed that Brandon had mosquito bites all over his body at that time, which were really bad. His skin was infected and puffy. Ms Samranbumrung had taken him to see a doctor but it appeared that he had an allergic reaction to the bites.
49. Ms Huang said since Brandon has returned to live with her brother in Australia, his skin problem has cleared up, although he still has scars. Ms Huang takes Brandon to pre-school and looks after him as she does her own children. It has not been necessary to take Brandon to see a doctor since returning to Australia. She speaks to Brandon in Cantonese and English and he speaks to his mother on the phone in the same languages. He seems to have forgotten most of his Thai.
50. Ms Huang confirmed that her father died of cancer in 2001 after a prolonged illness which dragged on for about seven years, but was particularly bad in the last few years. Her father had to see the specialist about every six weeks.
Submissions
Applicant
51. Mr Murphy, for the Applicant, conceded that this is a borderline case in terms of whether Ms Samranbumrung passes the character test. He acknowledged that she entered Australia using a false passport, worked in Australia illegally, was party to a false protection visa application and also worked in Japan using a Malaysian passport. However, in terms of her moral qualities, it should be noted that her reason for working overseas was specifically to raise money for her daughter and family. It should be remembered that this often happens in developing countries. Ms Samranbumrung now acknowledges her misconduct. She tried to regularise her situation by returning to Thailand in order to lodge her visa application, but had no idea how serious her misconduct would be considered until the time of the decision refusing her spouse visa application. Nevertheless, the Applicant contends that the misconduct is not so serious as to warrant a finding that she does not pass the character test.
52. With regard to the exercise of the discretion under s 501(1) of the Act and the primary considerations to which decision-makers are referred, Mr Murphy said the Applicant contends that Ms Samranbumrung is no risk to the Australian community, that despite serious breaches of Australian law she did nothing to hurt anyone in Australia, and that what she did was to benefit her family in Thailand. She is a family orientated person like Mr Huynh and there is no evidence to support the allegation that she is a recidivist risk. Similarly, there is also no evidence to support a contention that refusing a visa would have a deterrent effect on others.
53. With regard to the expectations of the Australian community, as Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34, there is a “general expectation in the community” that the Act will be administered fairly and humanely. As Deputy President Hotop recognised in ReGonzales and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 895 at paragraph 62, while “the Australian community expects the visa applicants will be honest, truthful and candid in relation to the information they provide to the Australian immigration authorities in support of their applications, and would not generally support the grant of a visa to an applicant who has provided false or misleading information in connection with their application”, nevertheless, other relevant considerations must be taken into account. In Mr Gonzales’ case, these relevant considerations included the Applicant being married to an Australian citizen who was living in Australia, that they had a young child who was an Australian citizen and living in Australia with the Applicant, his mother, and that the visa applicant had not committed any other offences in Australia or in the Philippines. In that case, the Tribunal found that, having regard to all the relevant circumstances, “it would not be the expectation of the Australian community that Mr Gonzales should be prevented from re-entering and remaining in Australia to be with his wife and their child”.
54. Mr Murphy likened the present case to that of Re Gonzales (supra) and contended that the Australian community would not expect Mr Huynh, an Australian citizen, to be forced to leave Australia and abandon his work in order to reside in a country where he does not speak the language and has poor prospects of employment, thereby preventing their Australian citizen child growing up as an Australian. Mr Murphy also noted the Travel Advice issued by the Department of Foreign Affairs and Trade warning that the risk of threats against Australians and Australian interests in Thailand is currently high (A6).
55. With regard to the best interest of the children, Mr Murphy reiterated that Brandon is an Australian citizen whose health has improved since leaving Thailand in October 2002 and coming to Australia. The indicators published by the World Health Organisation (WHO) show that health expectations are significantly better in Australia than Thailand (A7). With regard to Ms Samranbumrung’s daughter, Supharat, Ms Samranbumrung wants her daughter to be part of a complete family. She has never known her father, who is clearly not interested in her, and has given his consent to Ms Samranbumrung bringing her to Australia to live with Ms Samranbumrung and Mr Huynh.
56. With regard to the other relevant considerations, Mr Murphy noted that Mr Huynh has a close family mostly living in the Wollongong area. Ms Huang, who has twin sons aged 10, established a good relationship with Ms Samranbumrung and had “sisterly talks” with her when Ms Samranbumrung was living here. There would be significant hardship to Mr Huynh if his wife is unable to come to Australia. Mr Huynh and Ms Samranbumrung have paid a significant price in trying to regularise Ms Samranbumrung’s migration status in terms of their separation for more than two years, the need for Mr Huynh to travel to Thailand and the costs involved in that travel and in pursuing Ms Samranbumrung’s visa application. It would be hard for him to find a job in Thailand and Ms Samranbumrung’s earning capacity is not sufficient to support them all. There are also currently risks for Australians currently living in Thailand and Brandon would face greater health risks.
57. Mr Murphy pointed that out Ms Samranbumrung has applied for a two year temporary visa so that the Respondent has the opportunity to reconsider the bona fides of the relationship and whether she passes the character test at the end of that period and when she applies for a permanent visa. Ms Samranbumrung has accepted responsibility for her misconduct and her willingness to assist the Department was noted at an interview on 18 June 2002 (T18 p161).
58. In conclusion, Mr Murphy submitted that the expectations of the Australian community and the best interests of the children, together with the other relevant considerations, outweigh any risk to the Australian community arising from Ms Samranbumrung’s misconduct and, therefore, the s 501(1) discretion should be exercised in her favour.
Respondent
59. Ms Grewal, for the Respondent, contended that Ms Samranbumrung does not pass the character test because of her past and present general conduct. She has admitted to using a false passport and the fact that she relied on agents is not sufficient to absolve her from responsibility. She knowingly committed serious offences in breach of Australia’s migration law. Looking specifically at her misconduct, Ms Grewal noted that in 1989, Ms Samranbumrung entered Japan using a Malaysian passport and worked illegally there for two years. Then in 1996/1997, after a proposal to work in a brothel in Singapore fell through, she agreed to go to Australia, and entered Australia knowing she was using a false passport and breaching Australian immigration law. Immediately prior to leaving Bangkok, Ms Samranbumrung had employment in which she was earning sufficient money to support her family. Thus, she did not come to Australia out of financial necessity. The Respondent contends that she was aware of the seriousness of what she was doing and was repeating what she had previously done in Japan. Ms Samranbumrung did not approach the Department to obtain a bridging visa until four and a half years after the expiry of the visa on which she entered Australia.
60. With regard to the s 501(1) discretion, Ms Grewal said Ms Samranbumrung knowingly engaged in serious breaches of Australia’s migration law - she committed breaches of the law over a substantial period of time. As Deputy President Wright QC noted in ReBeale and Minister and Immigration and Multicultural and Indigenous Affairs [2002] AATA 714 at paragraph 33, it is legitimate to conclude that similar misconduct may well occur in relation to other Australian law if the person is admitted into the Australian community. The refusal of a visa in Ms Samranbumrung’s case would send a message to others that the Australian Government will not tolerate such misconduct.
61. With regard to the expectations of the Australian community, the Respondent accepts that these expectations are to be judged according to the standards of the reasonable person. Here Ms Samranbumrung has failed to take responsibility, instead blaming the agents upon whom she relied. In such circumstances, a reasonable person in the Australian community would expect that a visa application would be refused.
62. With regard to the best interests of the children, Ms Grewal noted that Ms Samranbumrung’s daughter has grown up in Thailand, with her grandmother being the primary carer for significant periods of time. It is therefore arguable that it is in the best interests of Ms Samranbumrung’s daughter for her to remain in Thailand with her family. With regard to Mr Huynh’s son, who is an Australian citizen, if he lives in Thailand with his parent or parents, he could return to live in Australia at any time. Mr Huynh could himself relocate to Thailand and, for example, seek employment in Bangkok, notwithstanding that he would need to overcome his current language difficulties. The Respondent contends that even if the best interests of the children favour the grant of a visa, the other primary considerations outweigh this consideration.
63. With regard to other considerations, Ms Grewal noted that Mr Huynh was aware of Ms Samranbumrung’s immigration status before they were married and was partly responsible for persuading her to remain in Australia. Although he might suffer some emotional hardship if the visa is refused, there does not seem to be any legal impediment to his travelling to and from Thailand to visit his wife, nor to his relocating to Thailand. However, the Respondent accepts that Mr Huynh’s family might suffer some emotional hardship if he did relocate to Thailand to be with his wife. The Respondent also accepts that Ms Samranbumrung might suffer some emotional hardship if she is refused a visa. However, Ms Grewal contended that Thailand’s health care system is not so inferior as to not to be able to cope with health problems such as those suffered by Brandon.
64. In conclusion, while there may be some hardship to Mr Huynh and Ms Samranbumrung, this is outweighed by the primary considerations of the protection and expectations of the Australian community, and the discretion should not therefore be exercised in favour of Ms Samranbumrung.
Application of the Law and Findings
65. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Samranbumrung passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 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 section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry …
66. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
67. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Samranbumrung, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
68. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or 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 and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
69. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. The Tribunal finds that in about 1990, Ms Samranbumrung travelled to Japan and worked there for a period of approximately two years. It appears that although Ms Samranbumrung travelled on her own Thai passport, she entered Japan illegally using a false Malaysian passport. She returned to Thailand after two years because her mother was sick but, in order to do so, had to obtain a temporary travel document through the Thai Embassy in Tokyo and permission to exit granted by the Japanese Department of Immigration.
70. Ms Samranbumrung married not long after returning to Thailand and gave birth to her daughter, Supharat Sonchan, on 3 December 1994. However, she had divorced her husband two months earlier on 7 October 1994. When her daughter was approximately three months old, Ms Samranbumrung resumed working as a waitress and then a receptionist in a hotel in Khon Kaen, 22 kilometres from Ms Samranbumrung’s home in Ban Fang.
71. After about 14 months, Ms Samranbumrung went to Bangkok to look for work, leaving Supharat in the care of her mother and returning to see her monthly. Ms Samranbumrung worked in Bangkok from about August 1996 until April 1997, just prior to leaving for Australia. Ms Samranbumrung had been approached at the nightclub where she was working by two Thai ladies known as Pom and Dan who asked whether any of the girls there were interested in working overseas. Ms Samranbumrung said she was interested and was introduced to a couple called Noi who made the arrangements for her to come to Australia including providing her with a false passport. Ms Samranbumrung entered into an agreement with them as to the recovery of their fee and costs. She was aware that she would be entering Australia on a false passport in order to work in a massage parlour and did so on the basis that she was promised that $500 per month would be remitted to her family in Thailand.
72. On 12 April 1997, Ms Samranbumrung entered Australia on a false passport with a visitor visa valid for three months from the date of arrival. She then went to work in a brothel at 429 Pitt Street, Sydney. She was told that she needed to apply for a visa to enable her to remain in Australia, and was given an application form to sign by her employer without the form being explained to her. The Tribunal accepts that she could not read or write in English at this time and so was not aware of the content of the protection visa application lodged on her behalf. Nevertheless, Ms Samranbumrung accepts responsibility for the protection visa application which contained false statements to support a claim of persecution, including that she feared returning to Thailand because her life would be in danger. She acknowledges that this was not the case.
73. A delegate of the Respondent denied Ms Samranbumrung’s protection visa application on 29 September 1997 and, after her bridging visa expired on 3 November 1997, Ms Samranbumrung remained in Australia illegally. Meanwhile, in early August 1997, Ms Samranbumrung met Mr Huynh and moved in with him in late August/early September 1997. She then stopped working in the brothel and undertook Mr Huynh’s household chores and looked after him. The Tribunal finds that from late November 1997, when Mr Huynh and Ms Samranbumrung signed a Residential Tenancy Agreement for a unit in Penrith, Mr Huynh became aware of Ms Samranbumrung’s use of a false name. After Ms Samranbumrung told Mr Huynh she was pregnant, they consulted a migration agent and, on the basis of the advice they were given, they decided to postpone Ms Samranbumrung returning to Thailand and lodging a spouse visa application because, at the time, they had little money, Mr Huynh’s father was terminally ill with cancer, and they wanted to wait until their child had been born and was old enough and healthy enough to return to Thailand with his mother. It was not until about July 2001, after the death of Mr Huynh’s father and when their child was nearly three years old, that Mr Huynh and Ms Samranbumrung again consulted a migration agent. As a result, Ms Samranbumrung applied for a bridging visa and, on 22 September 2001, departed Australia with Brandon. On 17 December 2001, she lodged a spouse visa application at the Australian Embassy in Bangkok.
74. On the basis of the above findings and, in particular, noting that Ms Samranbumrung entered Australia on a false passport, worked without permission, lodged a false protection visa application, remained in Australia after her bridging visa expired and delayed any attempt to regularise her status until September 2001, the Tribunal determines that she does not pass the character test.
75. Having decided that Ms Samranbumrung does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Ms Samranbumrung. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers 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.
76. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(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.
77. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
78. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
79. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”.. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
80. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
81. With regard to the first primary consideration, the Tribunal considers that Ms Samranbumrung is no real threat to the Australian community. While she committed serious immigration offences in relation to her entry and stay in Australia, the Tribunal considers that the likelihood of her repeating this misconduct is minimal given her changed circumstances and given her and Mr Huynh’s realisation of the seriousness of her past misconduct. While the Tribunal recognises that general deterrence is an important factor in deciding whether to refuse a visa, it is not in itself conclusive.
82. With regard to the second primary consideration, the expectations of the Australian community, the Tribunal considers that the community would take a humane view of Mr Huynh’s and Ms Samranbumrung’s situation having particular regard to the interests of their child, and would not expect that Ms Samranbumrung would be refused a visa.
83. The third primary consideration is the best interests of the child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
84. There are two children whose interests must be considered in this case. First, there are the interests of Brandon, Mr Huynh’s and Ms Samranbumrung’s son who is now aged five. Brandon was born in Australia and is an Australian citizen and, although he lived with his mother in Thailand between September 2001 and October 2002, he is now living with his father and Mr Huynh’s family and attending pre-school with the view to starting primary school in 2004. While Brandon was living in Thailand with his mother, they spoke Thai, but since returning to Australia he has spoken a mixture of Cantonese, the language spoken by Mr Huynh’s family at home, and English. The Tribunal accepts that Brandon’s skin problems, arising out of infected mosquito bites, have cleared up since his return to Australia and that he is a healthy young child living in a supportive family environment. In the Tribunal’s view, his best interests are in remaining in Australia where he will benefit from the better health and education services and is likely to have better future prospects. It would of course be in his best interests if his mother were able to join Brandon and Mr Huynh in Australia.
85. The second child whose interests must be considered is Ms Samranbumrung’s daughter, Supharat Sonchan, who will be nine on 3 December 2003. The Tribunal accepts that Supharat’s father has taken no interest in her upbringing and has granted his consent to Ms Samranbumrung bringing her to Australia to live with Ms Samranbumrung’s and Mr Huynh’s family. Supharat has never been to Australia and would be separated from her grandmother who was her primary care-giver whilst Ms Samranbumrung was working in Bangkok and, subsequently, living in Australia. Nevertheless, the Tribunal recognises that if Supharat were to accompany Ms Samranbumrung to Australia to live with Mr Huynh and his family, this would also be beneficial to her interests in term of health and education and future prospects.
86. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
87. The Tribunal finds that Mr Huynh was not aware of his wife’s status in Australia and that she had entered Australia using a false passport until about late November 1997, approximately two to three months after their relationship had commenced. Even when he and Ms Samranbumrung first obtained migration advice, they seemed not to have realised the seriousness of Ms Samranbumrung’s situation. Since Ms Samranbumrung was by then pregnant, they had little money and Mr Huynh’s father was terminally ill with cancer, they decided to delay regularising her status until their situation was clearer and their child was old enough and healthy enough to return to Thailand with his mother so that Ms Samranbumrung could lodge a spouse visa application in Thailand.
88. The Tribunal has no doubt that the relationship between Mr Huynh and Ms Samranbumrung is a genuine marital relationship. Mr Huynh’s family are all in Australia, many of them living in the Wollongong area where Mr Huynh and Brandon are currently living and where Mr Huynh is working. The family is a close and supportive one. Apart from her husband and son, Ms Samranbumrung’s family are in Thailand although, as the Tribunal has already mentioned, Ms Samranbumrung’s daughter Supharat’s father has taken no interest and has not been involved in her upbringing.
89. Ms Samranbumrung’s separation from Mr Huynh and Brandon who are in Australia is clearly causing hardship to Mr Huynh, Brandon and Ms Samranbumrung. The Tribunal accepts that it would be difficult for Mr Huynh to relocate to Thailand because he does not speak the Thai language and could have difficulty securing appropriate employment. By contrast, he has employment and a secure family situation in Australia.
90. Weighing up the primary and other considerations, in the Tribunal’s opinion, the best interests of the children outweigh the other two primary considerations in so far as Ms Samranbumrung poses no real threat to the Australian community and the community would expect, given the circumstances, that Ms Samranbumrung would not be refused a visa. Thus, the Tribunal concludes that the discretion in s 501(1) should be exercised in Ms Samranbumrung’s favour so as to not refuse the grant of a visa.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 16 and 17 September 2003
Date of Decision 17 October 2003
Solicitor for the Applicant Mr K Murphy
Solicitor for the Respondent Ms K Grewal
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