Inthavong and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 394
•19 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 394
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1069
GENERAL ADMINISTRATIVE DIVISION ) Re
Chansamone Inthavong
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date19 April 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a decision that Xayvong Nasavanh passes the character test pursuant to s 501(6) of the Migration Act 1958.
..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 spouse (provisional) visa – character test – Visa Applicant failed the character test on the basis of her 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 protection and expectations of the Australian community against any hardship to the Applicant – found that the Visa Applicant did overstay her visa – found that the Visa Applicant did not make any false or misleading statements and did not undertake paid work in Australia – held that the Visa Applicant’s conduct was not so deficient for her to be denied a visa to come to Australia – held that the Visa Applicant passes the character test – decision of the Respondent is set aside.
Migration Act 1958 s 499, 501, 501(6)(c)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
REASONS FOR DECISION
19 April 2004 Mr RP Handley, Deputy President Summary
1. The Visa Applicant, Xayvong Nasavanh, came to Australia on 23 July 2000 on a visitor visa granted with a no-work condition, valid for three months. Ms Xayvong did not leave Australia at the expiration of her visa, but remained in Australia illegally until December 2001 when she departed Australia on 24 December 2001 pursuant to a bridging visa valid until 24 December 2001. On 27 January 2001, Ms Xayvong had married the Applicant, Chansome Inthavong.
2. The Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refused Ms Xayvong’s subclass 309 spouse (provisional) visa application on the basis of her past and present general conduct including remaining in Australia illegally for a period of 14 months and working in contravention of her visitor visa. This is the decision to be reviewed by the Tribunal.
Background
3. Mr Inthavong was born in Vientiane, Laos, on 20 January 1964 and is aged 40. Mr Inthavong came to Australia on 25 March 1991 (T p55) and was granted Australian citizenship on 17 March 1994 (T p38). Mr Inthavong’s first wife, Khamphong Inthavong, died on 10 June 1999 at the age of 27 (T p61). They had one child, Melissa, who was born on 7 March 1990 and is now aged 14. Mr Inthavong is employed as a machine operator (T p56).
4. Ms Xayvong was born in Vientiane, Laos, on 15 January 1974 and is aged 30. On 17 July 2000, Ms Xayvong applied for a visitor visa to visit her brother, Sayvong Soukanh, in Australia for three months, which was granted subject to a “no work” condition on that day. She arrived in Australia on 23 July 2000.
5. On 1 August 2000, Mr Inthavong met Ms Xayvong at the home of Ms Xayvong’s sister, Xayamongkhoun Phoutsavanh and her husband Xayamongkhoun Kham Phong, at Hoxton Park, Sydney ((T p69). On 23 October 2000, Ms Xayvong failed to depart Australia on the expiration of her visitor visa. About 1 December 2000, Mr Inthavong formally asked for Ms Xayvong’s hand in marriage and, on 27 January 2001, they were married in a civil ceremony at Cecil Hills (T p40).
6. On 6 December 2001, Ms Xayvong was granted a bridging visa permitting her to remain in Australia until 24 December 2001. On 17 December 2001, Mr Inthavong lodged a subclass 309 spouse (provisional) visa application (T p33) and accompanying sponsorship for a partner to migrate to Australia (T p53) at the Parramatta office of DIMIA (T p86), to be forwarded on for lodgment in Vientiane, Laos. On 24 December 2001, Ms Xayvong departed Australia. On 9 January 2002, the Australian Embassy in Bangkok, Thailand, acknowledged receipt of Ms Xayvong’s application (T6 p80) and, on 23 July 2002, Ms Xayvong was interviewed at the Embassy (T p158). At that interview, she told the interviewing officer that she returned to Laos because if she stayed longer she would be illegal and because she wanted to come home for Christmas (T p160).
7. On 24 July 2002, an officer at the Australian Embassy in Bangkok advised Ms Xayvong that she was considering refusing her spouse visa application on the basis of her past and present general conduct and inviting her to comment or provide further information for consideration (T13 p156). Neither Mr Inthavong nor Ms Xayvong responded to this letter. On 21 November 2002, a Senior Migration Officer decided to refuse Ms Xayvong’s spouse visa application on the ground that she did not pass the character test because of her past and present general conduct and that the discretion in s 501(1) of the Migration Act 1958 (“the Act”) should not be exercised in her favour. On 1 July 2003, Mr Inthavong lodged an application for a review of this decision with the Tribunal. On 20 August 2003, the Tribunal granted an extension of time for the lodging of the application.
8. At the hearing, Mr Inthavong was represented by a friend, Samuel Da Silva, and the Respondent was represented by Ishan Muthalib, 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”). Oral evidence was given in person by Mr Inthavong, Melissa Inthavong, Xayamongkhoun Kham Phong and Xaymongkhoun Phoutsavanh and Ms Xayvong gave evidence by conference telephone from Laos.
Relevant Law and Policy
9. 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:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
10. 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”.
11. 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 the 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.
12. The issue for the Tribunal to determine in this case is, therefore, whether Ms Xayvong 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.
Evidence
13. Mr Inthavong was born in Vientiane on 20 January 1964 and is aged 40. He left Laos in 1985 to escape the Communist regime. He spent five or six years in a refugee camp in Thailand before being sponsored to migrate to Australia by his first wife. He arrived in Sydney in 1991. His parents and three brothers and four sisters now live in the USA, two brothers and a sister live in Laos, and one sister lives in Thailand. Mr Inthavong and his first wife married in Australia and Mr Inthavong became an Australian citizen on 17 March 1994. His wife died of liver cancer on 10 June 1999. This was a time of great sadness for Mr Inthavong and his daughter Melissa who was then aged nine.
14. Mr Inthavong works as a machine operator. He has to get up and go to work early leaving Melissa on her own at home. She is also alone after school before Mr Inthavong arrives home. Mr Inthavong has no other immediate family in Australia.
15. Mr Inthavong knew Xayamongkhoun Kham Phong from the refugee camp in Thailand. About a month after Mr Inthavong arrived in Sydney, he met Mr Xayamongkhoun at the local shops and, thereafter, they used to see each other there and at Lao community functions. Mr Xayamongkhoun came to Australia as a refugee in 1988.
16. Ms Xayvong was born in Vientiane on 15 January 1974 and is aged 30. She has two younger sisters who live with her parents in Vientiane, she has one older brother and two older sisters who live with their families in Australia, and a third older sister whom Ms Xayvong thinks is still living in Japan, although they have lost touch since the sister’s divorce. Ms Xayvong’s brother, Xayvong Soukanh lives in Sydney with his wife and five children. Her sister Phoutsavanh is married to Mr Xayamongkhoun with whom she lives in Sydney. They do not have children. Her sister Luangkhot Gnotsavanh lives in Adelaide.
17. Ms Xayvong runs a small shop in Vientiane assisted by her younger sister. Around March/April 2000, she discussed the possibility of visiting Australia with her brother in Sydney. He agreed to sponsor her visit and swore a Statutory Declaration to that effect dated 5 May 2000. He then sent these documents to Ms Xayvong. She had been advised by a friend who had studied in Australia that she should obtain a visa application form from the Australian Embassy in Vientiane. She wanted to visit Australia to visit her brother and sisters, to see something of Australia and with a view to attending the Olympic Games. The object of her visit to Australia was not to find a husband. She did subsequently attend Olympic Games soccer.
18. Having obtained a visa application form from the Australian Embassy, Ms Xayvong completed this and, on 17 July 2000, lodged the form at the Embassy. The visa was granted that day and, on 23 July 2000, Ms Xayvong arrived in Australia. She purchased her airline ticket in Vientiane after the visa was granted. Ms Xayvong acknowledged that she was aware that her visitor visa permitted a three month stay and said she had planned to return to Laos after three months. When her visa was granted, she phoned her brother and told him she was coming for three months. She also phoned her sister Phoutsavanh to say that she was coming but did not tell her how long her visa permitted her to stay. Ms Xayvong said her sister may have assumed that it was for six months since this was a common length of stay for Laotian visitors to Australia. Her sister did not ask her about a specific departure date. Her brother may have assumed that she had obtained an extension of her visa. He also did not ask about a specific return date. Her brother sponsored her visit rather than her sister Phoutsavanh because his English is better and he had more time to make the necessary arrangements.
19. During Ms Xayvong’s absence from Vientiane, she arranged for her younger sister to continue running her grocery business, the profits from which go to support her family, including their parents who are not working. Ms Xayvong saved US$3000 to take with her to Australia. This was to pay for “touristy things” in Australia. Her brother and sister provided her everyday support and also appear to have paid for clothes and for some other activities.
20. Ms Xayvong said in the first part of her stay, she did “touristy things” and went to visit her sister in Adelaide. She stayed with her brother for the first week but then moved to stay with her sister Phoutsavanh because her brother did not have sufficient room in his Housing Commission house with his five children. Ms Xayvong said she is also closer to Phoutsavanh.
21. On 1 August 2000, Phoutsavanh and her husband had a dinner party at their house in Hoxton Park to which Mr Inthavong was invited. Both Ms Xayvong and Mr Inthavong denied having any advance knowledge that the other would be present or that they knew each other beforehand. Phoutsavanh said she had also never met Mr Inthavong before – he was a friend of her husband’s from his time in the refugee camp in Thailand.
22. Mr Xayamongkhoun said he had not told Mr Inthavong beforehand of his wife’s sister staying with them. He was not hopeful of his introducing them leading to anything. However, it is customary in Lao culture for single people to be introduced to others. It was then up to them as to whether they followed up on the introduction. Mr Xayamongkhoun was aware of Mr Inthavong’s wife having died in June 1999 and said he had been to Mr Inthavong’s house to comfort him after her death. Mr Xaymongkhoun thought his wife Phoutsavanh had accompanied him on this occasion although she said she had never met Mr Inthavong before 1 August 2000.
23. Ms Xayvong said Mr Inthavong came to the dinner party alone. They were introduced and spoke. She thought him a friend. At some time in the course of the evening, Mr Inthavong went to collect his daughter, Melissa from swimming. They then went back to the house at Hoxton Park where Melissa was also introduced to Ms Xayvong. Melissa’s recollection is that the party was not at Mr Xayamongkhoun’s house, but all the evidence suggests that it was. Melissa said Ms Xayvong seemed a nice person.
24. After meeting on 1 August 2000, Mr Inthavong invited Ms Xayvong to go out with him – they went out to meals together, he visited her at Mr Xayamongkhoun’s house and she also began to visit Mr Inthavong at his house. Ms Xayvong said that after about a week of seeing each other, they had become close friends. After about another week, Mr Inthavong gave her a gold necklace as an indication of his love and about a week later they started a sexual relationship. Ms Xayvong began coming to Mr Inthavong’s house and helping with the cleaning, washing and cooking because he and Melissa had no other help. Sometimes she stayed the night. Mr Inthavong did not pay her for this help.
25. On 19 September 2000, Mr Inthavong and Melissa flew to the USA to visit his parents who were unwell. Mr Inthavong asked Ms Xayvong to wait for him because of their feelings for one another. He told the Tribunal that he was already in love with Ms Xayvong, she got on well with Melissa and he thought she would make a good mother for Melissa and look after them both. While he and Melissa were away, Mr Inthavong phoned her two or three times from the USA. They returned from the USA on 21 October 2000. Ms Xayvong’s visa expired on 23 October 2000 but she did not tell Mr Inthavong or her family. She wanted to stay to make Mr Inthavong happy. Ms Xayvong was visiting Mr Inthavong’s house three or four times a week and staying the night about once a week.
26. Around 1 December 2000, Mr Inthavong formally asked Ms Xayvong’s sister Phoutsavanh and her husband for Ms Xayvong’s hand in marriage. Mr Inthavong bought Ms Xayvong a diamond ring and a bracelet to mark their engagement. They then made preparations for the wedding, choosing 27 January 2001 because it was an auspicious day and her husband was on holiday. Ms Xayvong said she did not want to tell her husband about her visa having expired because it would make him unhappy.
27. After the wedding, Ms Xayvong moved in with Mr Inthavong and Melissa and they settled into a normal family life, with Ms Xayvong being a housewife and looking after the family. They were happy together. Melissa said she was glad her father had found someone to love him. Life was very sad after her mother, whom she loved very much, died. However, she formed a close relationship with Ms Xayvong – both as a stepmother and best friend. Ms Xayvong would wake her every morning to get ready for school and she would be there for Melissa after school. They even went together to visit her mother’s grave in the cemetery to lay flowers.
28. Ms Xayvong said she had decided to tell her husband about her expired visa about a month after the wedding. However, her husband came home from work one day and said they should go back to Laos for a holiday. He asked about her visa and she told him that it had expired on 23 October 2000. She knew that her conduct in overstaying was wrong and that she would have to return to Laos to apply for a proper visa. She also told her family.
29. Ms Xayvong said her husband asked her to wait until December 2001 before returning to Laos. This was because Mr Inthavong’s holiday – the factory closure for the Christmas break – started on 24 December 2001 and he wanted to accompany her. Also he wanted to save to pay for the airfares and so that Ms Xayvong could lodge a proper visa application. Mr Inthavong said he did not want his wife to leave and for Melissa to loose her stepmother. They were happy living together. They did not tell Melissa that Ms Xayvong’s visa had expired – just that she had to return to Laos “to do some applying and documentation”. They did not say how long she was going for.
30. About early December 2001, Mr Inthavong bought airline tickets for he and his wife to go to Laos. Then, on 6 December 2001, they went to see the Department to explain what had happened. Ms Xayvong said she wanted to do everything legally, knowing that it was wrong to overstay her visa. The Department advised them that Ms Xayvong should apply for a bridging visa, which she did, permitting her to remain in Australia until their departure on 24 December 2001. On 17 December 2001, Mr Inthavong lodged his wife’s spouse visa application at the Department’s Parramatta office which forwarded it to the Australian Embassy in Bangkok for processing.
31. On 24 December 2001, they flew to Laos, Mr Inthavong returning to Australia in late January 2002. Since then, they have maintained contact by phone, about three times a week. However, Mr Inthavong said their separation has been very sad like when his first wife died. Melissa said she feels lonely and sad without her stepmother. She has to help her father cook and clean. She misses Ms Xayvong very much and thinks about her every night before she goes to sleep. Ms Xayvong is a loving and caring person. A couple of months after the wedding, Melissa began to call her “Mum”. They talk on the phone every weekend, about what they have been doing and “girlie things”.
32. Mr Inthavong said he went to Laos again on 13 April 2002 for the Lao New Year and stayed two weeks, and then he and Melissa both went to Laos for four weeks in December 2003, from 16 December 2003 to 11 January 2004. Melissa said she spent a lot of time with Ms Xayvong in Laos and enjoyed going out to the markets and buying clothes. However, she did not like the food “that much” and had stomach pains. Also, she reacted badly to mosquito bites. Melissa would not want to live in Laos. Her home and all her friends are in Australia. She speaks Lao but cannot read or write Lao.
33. Mr Inthavong said he could not return to Laos to live. He and his daughter are both Australian citizens and he would not want to take his daughter there to live. It is not as safe there and the education and health services are not as good as in Australia. Mr Inthavong said he and Ms Xayvong have not yet had a child because he wants her to be a permanent resident first so that the family are not parted. Life is so difficult in Laos especially without a father to care for a child.
34. Ms Xayvong’s sister, Phoutsavanh spoke of Ms Xayvong as a kind-hearted, generous person. Their parents, Mr Xayvong Keung and Mrs Xayvong Thong, in statements dated 3 February 2004, told of Ms Xayvong’s happiness at marrying Mr Inthavong and how when they have been together in Laos, they are always inseparable. Ms Xayvong has been very lonely, missing her husband and Melissa and waiting for their telephone calls. Both parents spoke of Ms Xayvong’s laughter on the phone but also of her crying.
Application of the Law and Findings
35. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Ms Xayvong 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 Goldiev 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…
36. 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).
37. 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 Xayvong, 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.
38. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 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) and 1.9(b) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)).
39. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
40. Before making a decision on whether Ms Xayvong passes the character test, it is appropriate that the Tribunal set out its relevant findings of fact. The Tribunal finds that the relationship between Mr Inthavong and Ms Xayvong is a genuine loving and caring marital relationship. The Tribunal rejects the Respondent’s contention that Ms Xayvong made a false and misleading statement in her visitor visa application lodged on 17 July 2000. She stated in the application that she wanted to visit her brother who was sponsoring her visit. She also included details of her two older sisters who live in Australia. Ms Xayvong gave evidence that she had heard Australia was a beautiful country and that she knew the Olympics were to be held in Sydney. She therefore wanted to see something of Australia and the Olympics. The Tribunal considers these to be secondary reasons for her visit, the principal reason being to visit her brother and sisters.
41. The Tribunal also rejects the Respondent’s contention that Ms Xayvong intended to remain in Australia permanently. There is no evidence of this and the Tribunal found her denial to be entirely credible. Indeed, the Tribunal found that she gave evidence openly and honestly and that her evidence was corroborated by that of her sister, Phoutsavanh and her brother-in-law, Mr Xayamongkhoun.
42. Ms Xayvong acknowledged that she overstayed her visa, that it was wrong for her to do so and apologised. The Tribunal finds that Mr Inthavong was not aware of his wife overstaying her visa until about a month after marriage. Ms Xayvong said she did not want to be separated from Mr Inthavong. Clearly, they were in love and, especially given the background of Mr Inthavong’s first wife having died, she did not want to spoil his happiness. The Tribunal accepts that Mr Inthavong knew little about visas at this time.
43. When Ms Xayvong told him of her overstaying, Mr Inthavong asked her to postpone returning to Laos. Mr Inthavong had been told that if she went to the Department, they would ask her to leave as soon as possible. Mr Inthavong also learned that his wife would have to lodge her spouse visa application in Laos. He wanted to return to Laos with her, and asked her to wait until December 2001 when his factory closed down for the Christmas break. He also needed time to save for their airfares and to complete his wife’s spouse visa application.
44. In the meanwhile, Mr Inthavong, Ms Xayvong and Melissa lived together in a normal happy family existence. By early December 2001, Mr Inthavong had saved enough money to purchase two airline tickets. He and Ms Xayvong then went to the Department’s Parramatta office to try and make arrangements for Ms Xayvong to leave Australia legally. On 6 December 2001, she was issued with a bridging visa permitting her to remain in Australia until 24 December 2001. On that day, Mr Inthavong and Ms Xayvong flew to Laos. Ms Xayvong was therefore in Australia without a valid visa from 24 October 2000 until 5 December 2001.
45. The Tribunal finds that Ms Xayvong did not undertake paid work while she was in Australia. The housewifely cleaning, cooking, washing etc she did for Mr Inthavong before their marriage was done, at first, as a matter of friendship and, later, out of love. The Respondent conceded that it was not pursuing its original contention that Ms Xayvong worked while in Australia in breach of the conditions of her visitor visa.
46. The Tribunal finds that Ms Xayvong has formed a close relationship with Mr Inthavong’s daughter Melissa and that Melissa regards Ms Xayvong as her stepmother, whom she calls “Mum”, and as a best friend. Melissa obviously misses her a lot. Given the death of Mr Inthavong’s first wife from liver cancer on 10 June 1999 at the age of 27, his and Melissa’s separation from Ms Xayvong is all the more poignant. Apart from visits to Laos, they have now been separated for more than two years, causing all three significant hardship.
47. In terms of Ms Xayvong’s past and present conduct (s 501(6)(c)(ii)), the Tribunal finds that her misconduct was to overstay her visa by a period of just over 13 months. She has acknowledged that what she did was wrong and, whilst not seeking to excuse that wrong, has explained why she overstayed. There is no question that such immigration misconduct is serious. However, it arose as a result of what occurred after Ms Xayvong arrived in Australia and she did not make any false or misleading statement or otherwise show contempt or disregard for the law. Ultimately, she left Australia while in possession of a valid bridging visa, having been to the Department to acknowledge having overstayed her visa and to explain what had happened with a view to regularising her status before leaving Australia.
48. The Tribunal had regard to the discussion of what is meant by good character in Goldie (supra) and Re Msumba (supra), which refer the decision-maker to the applicant’s “enduring moral qualities”, and to the statement in Re Msumba (supra) at para 37 that an applicant is not required to meet the highest standard of integrity: rather the issue is whether the deficiencies in his or her character are such “that it is in the public good to refuse the visa”. With reference to this discussion and the evidence as to Ms Xayvong’s character, background and situation, the Tribunal is not satisfied that her character is so deficient as for it to be for the public good that she should be refused entry. The evidence indicates that she is a loving, caring person dedicated to her new family. While overstaying her visa is a serious matter, in other respects she has acted properly and has been forthright and honest in her dealings with the Department and in giving evidence at the Tribunal. Pursuant to s 501(6), she therefore passes the character test.
49. The Tribunal notes that even if it were to find that Ms Xayvong does not pass the character test, there are compelling reasons to support the exercise of the residual discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No 21, in the Tribunal’s opinion neither the protection of nor the expectations of the Australian community require that Ms Xayvong be excluded from Australia. While Ms Xayvong’s misconduct is serious, she is no threat to the Australian community which would take a compassionate view of her and Mr Inthavong’s situation.
50. Particular regard should be had to the third primary consideration, the best interests of any children, in particular, Mr Inthavong’s daughter, Melissa who is aged 14. All the evidence suggests that she has a close and loving relationship with her father, her mother having died when she was nine, and that she has now also established a close and loving relationship with Ms Xayvong. There is no question that Melissa’s best interests would be served by the grant of a visa to Ms Xayvong and that their separation for more than two years has resulted in hardship for Melissa.
51. With regard to the other considerations to which a decision-maker is directed by Direction No 21, these also support the exercise of the s 501(1) discretion. Mr Inthavong’s and Melissa’s home is in Australia – both are Australian citizens. Mr Inthavong does not want to return to Laos from where he escaped to a Thai refugee camp in about 1985. He has a home and job in Australia and a place in the community. He and Ms Xayvong have suffered significant hardship. Mr Inthavong was not aware of his wife having overstayed her visa at the time of their marriage and had little knowledge of immigration. Once he became aware that Ms Xayvong had overstayed, it was their intention that she should return to Sri Lanka to apply for a spouse visa. However, they did not want to be parted and Mr Inthavong needed to save for their airline tickets. He wanted to return to Sri Lanka with his wife during his annual holiday. None of this excuses Ms Xayvong’s overstaying, but it does, at least, show her intention to do the right thing albeit much later that she should have done.
52. In the Tribunal’s view, weighing up the primary and other considerations, Ms Xayvong is no threat to the Australian community and the community would take a humane view, particularly with regard to Mr Inthavong’s situation. In any event, Melissa’s interests outweigh the other primary considerations and favour the grant of a visa to Ms Xayvong. Thus, the Tribunal concludes that the discretion to not refuse the grant of a visa should, if Ms Xayvong were not to pass the character test, be exercised in her favour.
53. The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Xayvong Nasavanh passes the character test pursuant to s 501(6) of the Act.
I certify that the preceding 53 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 29 March 2004
Date of Decision 19 April 2004
Representative for the Applicant Mr S Da Silva
Representative for the Respondent Mr I Muthalib, Solicitor
0
3
0