Karalis and Minister for Immigration and Multicultural and Indige Nous Affairs
[2003] AATA 483
•27 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 483
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/788
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOS KARALIS Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date27 May 2003
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration – spouse visa – overstayed visa by two years – worked in contravention of visa at brothels in Sydney and Melbourne – application for protection visa refused - married review applicant 6 days before enforced departure – good character test not met – decision under review affirmed.
Migration Act 1958 – s501
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
REASONS FOR DECISION
27 May 2003 The Hon C R Wright QC., (Deputy President) The Application
1. The review applicant has applied for review of a decision of the respondent’s delegate made on 29 June 2002 whereby the visa applicant’s application for a Class UF Subclass 309 Spouse (Provisional) visa as refused.
2. The review application was heard in Melbourne on 31 March and 1 April 2003. The applicants were represented by Mr James Wood and the respondent was represented by Ms Jennifer Greaves. The following documentary evidence was received:
(i) Section 37 (“T”) documents Exhibit “A”
(ii) Supplementary T documents Exhibit “B”
(iii) Statutory Declaration by Christos Karalis dated 15.10.02 Exhibit “C”
(iv) Folder containing telephone accounts and bank accounts Exhibit “D”
(v) Statutory Declaration by David Parkes dated 22.10.01 Exhibit “E”
(vi) Medical Report by Dr I Maclean dated 15.10.01 Exhibit “F”
(vii) Statement by Jonathon Karalis dated 17.10.02 Exhibit “G”
(viii) Statement by K Maltzahn dated 28.3.03
(admitted in amended form) Exhibit “H”
(ix) Statement by Benja Chaowarit dated 2/10/02
(English translation) Exhibit “I”
Oral evidence was taken from the review applicant Christos Karalis, David Parkes, a friend of the review applicant, Johnathon Karalis the review applicant’s son, John Karalis, the review applicant’s father, Dr Ian Maclean, the review applicant’s medical adviser and Benja Chaowarit, the visa applicant whose evidence was taken by telephone link from Thailand with the assistance of an interpreter.
3. The visa applicant is a 27 year old female Thai citizen who married the review applicant, a 39 year old male Australian citizen on 7 August 2001 at Melbourne, 6 days before her enforced departure from Australia under the supervision of the Department. The review applicant conducts his own retail business as a Service Station manager/operator at Clayton South in Victoria. The visa applicant is currently living in Bangkok, Thailand awaiting the outcome of these proceedings. There are no children of the marriage.
Immigration History of Visa applicant.
4.(i) On 3 May 1999, Benja Chaowarit, the applicant was granted a visitor visa on the basis that she was travelling to Australia on holiday.
(ii)On 6 May 1999, the applicant entered Australia with an authorised stay of 3 months. Subsequent to 6 August 1999 she overstayed her visa by two years and 1 week. She also worked in contravention of that visa at brothels in Sydney and Melbourne.
(iii)On 21 May 1999, the applicant applied for a Protection visa. This application was refused on 4 June 1999.
(iv)On 8 July 1999, the applicant applied for review of the decision to refuse her application for a Protection visa. On 18 October 1999, this application was withdrawn.
(v)On 15 November 1999, the applicant failed to depart Australia within the “28 days period of grace” being the period allowed by the Department to enable an applicant to institute Federal Court proceedings.
(vi)On 5 July 2001, the applicant was located working without permission at “Harem International Brothel” and detained under s189(1) of the Migration Act. The applicant was released on a Bridging Visa E on 9 July 2001. She married the review applicant while on release.
(vii)On 13 August 2001, the applicant departed Australia under the supervision of the Department.
The Respondent’s Contentions
5. The respondent alleges that the visa applicant is a person who is not of good character and that consequently she should be refused a visa to rejoin her husband in Australia by reason of her inability to meet the character test under s501 of the Migration Act 1958 (“the Act”).
6. The basis upon which it is contended she fails the character test may be summarised as follows:
(a)She applied for and gained entry into Australia falsely pretending that she intended to come here as a bona fide non-working visitor for a stay not exceeding 3 months when, in fact, she came here intending to work as a prostitute for an indefinite period and did so work both in Sydney and Melbourne.
(b)She applied for a protection visa alleging that she feared for a her life and supported this allegation with a fabricated story knowing that she had no bona fide grounds for making the application.
(c)She applied for a review of the delegate’s decision to refuse a Protection visa, thus abusing the immigration system knowing that she had no grounds for review.
(d)She continued to work in Australia thereafter knowing that she had no legal justification for remaining in Australia or working here.
The Visa Applicant’s Personal History
7. It must be noted at the outset that there is no corroboration either direct or indirect of the visa applicant’s story up until her meeting with the review applicant in about July 2000. From that point on her version of events is essentially the same as that provided by the review applicant and members of his family, which I believe to be generally creditworthy and reliable. I continue to have serious reservations about accepting some of her evidence as to her claimed knowledge of immigration procedures and requirements, and I will comment appropriately upon these matters as I review her story.
8. The applicant’s advocate, no doubt mindful of the absence of direct confirmation of the visa applicant’s account, tendered a report by Kathleen Maltzahn who has undertaken extensive work studying features of the sex trade involving (inter alia) trafficking in women and children of South East Asian origin since 1990. She has also studied and lectured on street, military and bar prostitution and brothels in the Philippines and Australia. There is no doubt she has extensive and valuable knowledge about these and associated matters and her report has been helpful in giving me a broader understanding of these issues. There were however, two paragraphs in her report (paragraphs 6 and 10) which purported to express opinions directly relating to the veracity of the visa applicant. I admitted the report with these paragraphs excised.
9. The visa applicant told me either by direct oral evidence or by way of her statement (Exhibit “I”) that she was born in Bangkok, the sixth child in a family of 8 children. Her mother died when she was 4, murdered by her father, following which the father disappeared and the children separated. She, however, lived with her elder brother and received what was, by Thai standards, a good education. She left school at age 18 and obtained a job as a singer in a hotel. She wished to save money to enable her to finish her high school studies and seek diploma or bachelor degree qualifications.
10. The visa applicant and a female co-worker were persuaded by another singer, Nam, to go to Macau where the pay for singers was allegedly much better than in Thailand. Nam provided funds for their travel expenses. When they arrived in Macau they were told there were no singing jobs available and were told to become sex workers. At first they refused, but Nam’s colleagues intimidated them into compliance by alleging they owed much money for their fares and this was the only way to repay it. The visa applicant and her companion were forced into sex slavery in appalling conditions and were kept as virtual prisoners in the brothel where they worked. They were threatened with violence or death if they tried to escape. Eventually the brothel operators decided to repatriate her to Thailand. The visa applicant had been in Macau about 7 months.
11. In about April 1999, the visa applicant returned to Thailand. In Macau she had been befriended by an older prostitute, Noi, who spoke to her about working as a sex worker in Australia. Arrangements were made that if and when the visa applicant returned to Thailand she should contact a relative of Noi’s who would make appropriate arrangements for her to travel to Australia for that purpose. After returning to Thailand the visa applicant decided to follow Noi’s suggestion. A gentleman by the name of “Bee” contacted her.
12. The visa applicant claims that Bee was at pains to assure her that her travel to and proposed career in prostitution in Australia would be completely legal. She says that on the basis of this assurance she signed papers which he presented to her. She also obtained a new passport. I frankly do not believe she was concerned about the legalities of her proposed trip and I think she was prepared to sign anything put before her to further her plans to come to and/or remain in Australia. I do, however, accept that she could not then read English and was not specifically aware of the contents of the documents she was signing.
13. The visa applicant flew to Australia on 6 May 1999. She was accompanied by a female “minder”, Kai, who took her into Sydney and housed her with some Thai people including a woman who was also called “Bee”.. The visa applicant says:
“After that, Kai returned to Thailand. Bee then demanded to keep my passport to obtain a working visa. I believed in her. I trusted her and fully remembered that every thing was to be processed legally and she would find me a job. I waited for about a month. Bee then said I had to move out to live with a Chinese lady who could find me a job. Bee’s place was too crowded, and she could not find me a job. It would be better for me to live with Tia, the Chinese lady, who could find me a job with accommodation. I listened to Bee. I did what she said because I needed to work. I then worked at shop 368. I don’t know the name of the road, only the number, 368. Tia was from Hong Kong aged about 40 to 50, and speaks English and Chinese. She was short and shabby with long hair tied up in a bunch. Bee sent me there and said that Tia would process my working visa legally. And if I wanted to contact her I could do it through Tia. Bee sent me to shop number 368 and I started to work straight away that day. There, there were 5-6 Thai girls including me and another Chinese girl. These girls only asked me, “Who do I come with”.. They hardly talked to me. I told them that Bee had sent me there. After work, there was a man called Tai or A-Tai, who picked me up and sent me back to the apartment. It was close to a discotheque. I don’t know the street name. He was a Thai about 40 years old. He was of middle build and average height.
When we arrived at the apartment he said Bee had sold me to A-Tai and A-Sam. I was so surprised and frightened I could not believe that they were selling me like an object. This meant I had been conned by Bee and her family.”
I find the visa applicant’s claim that she trusted Bee and was expecting her to ensure that her prospective work was “legal”, to be completely unconvincing.
14. Mr Woods urged on me the proposition that his client was disposed to trust and attach herself to authority figures notwithstanding her intelligence and earlier bad experiences with Nam, and in Macau. Up to a point this could be true in light of her evidence as to her subsequent virtual slavery in Sydney, and her financial dealings with a rogue by the name of Peter Simos in Melbourne to which I will come later, but I find these very characteristics to be inconsistent with the visa applicant’s apparent concern that all of her activities should be completely lawful.
15. She was plainly dealing with some dreadful people and was being manipulated by them for their own purposes, but I do not accept that she ever confronted the legalities or illegalities of her conduct or formed a genuine belief that what she was doing was within the law.
16. She knew she wasn’t permitted to work when she came to Australia and she does not claim to have sought access to her supposed work visa or its conditions before plying her profession in Sydney. During her interview with the Minister's delegate, Ms Gibas in Thailand on 8 February 2002 (“T documents” p44-50 – Exhibit “A”) the visa applicant was asked as follows:
“How long did you work in Sydney?”
Her reply was:
“3 – 4 months, because I did not have working visa yet, they said that when I get working visa I would go to Melbourne.”
This to me is a clear indication that she knew she needed a visa to work, but was prepared to work without one. At a later stage in the interview she was asked:
“Did you realise staying in Australia without a visa and working like you did is against Australian law?”
Her reply is recorded as:
“Yes, but at first I did not realise. I was too busy working all the time.”
17. Returning to the visa applicant’s narrative of events, she said that she was detained in a Sydney brothel known as “368”.. She was provided with an apartment where she was kept under lock and key, being transported to and from the brothel at all times by an Asian male escort. Other girls were treated the same way. The visa applicant worked in this way 7 days a week for a period of about 2 or 3 months.
18. In August 1999 she was sent from Sydney to Melbourne. She was met at the airport by another male escort who took her to a brothel at 74 Brunswick Road. 5 or 6 other Thai women worked there. They were watched constantly. Their passports were controlled by the operators. They were provided to the women if a police raid was apprehended. By subterfuge the visa applicant and 2 other women escaped. The visa applicant sought refuge with a Thai lady and her Australian husband and at their instigation she reported her experiences to the St Kilda police.
19. The visa applicant says that she was informed by the police, after they had made inquiries that she was named as the applicant in a pending protection visa application. She says she was unaware that such an application had been made. The form in the T documents appears to have her signature upon it. Due to the shortcomings of oral examination when the witness is overseas I was unable to direct her attention to this and other documents which appear to have been signed by her. I think it likely that she signed the protection application with the same attitude of mind which I discussed above in paragraphs 13, 14, and 15.
20. At first she was required by the police to remain in Melbourne as a potential criminal witness, but apparently the anticipated criminal proceedings against the brothel operators and others came to nought and the visa applicant was told to return to Thailand. However, she did not do so. She moved into an apartment in Melbourne which had been rented by one of her Sydney clients “Patrick” who had followed her south. She became pregnant to him and had a miscarriage. The visa applicant acknowledges that she was fully aware that she was staying in Australia illegally. (See Exhibit “I” page 8).
21. The visa applicant broke off her relationship with Patrick and returned to the refuge provided by her Thai friend and her Australian husband.
22. While there she came under the influence of a fat middle-aged gentleman of Greek ethnicity called Peter Simos. He set about tricking her out of $26,000 claiming he could obtain an Australian visa for her. In fact she paid a total of $11,000 to this charming creature before she was persuaded by the review applicant that Peter was nothing but a confidence trickster. In the meantime however she had started work at a St Kilda brothel named “Hallem 55” where she could come and go as she pleased and was not under any physical constraint.
23. It was about July 2000 when she first met the review applicant. They both say this meeting was a chance encounter at the Crown Casino and that the review applicant did not meet her in a professional capacity. I have no reason to disbelieve them. They became a courting couple in effect over a period of time. Their first sexual experience was after about 1 month. The review applicant learnt that the visa applicant was working as a prostitute, but did not interfere. They were not anticipating serious commitment or marriage at that stage. After a time, as the relationship progressed, they introduced each other to their friends. The review applicant also introduced her to his 2 children by an earlier marriage which had ended in divorce, and his father and brother.
24. In January 2001 the visa applicant vacated the apartment she had been renting from Peter and moved into an apartment in South Bank. Her story continues at page 11 of Exhibit “I”:
“I started to live with Chris in a new apartment in South bank, sharing with a co-worker, Samma from Hallem 55. She is Australian, small and 3 years younger than me. Chris would come and go and sleep in my apartment 1 – 2 times a week. Chris took me to register for marriage in September 2001. Chris and I agreed to get married and I knew that I would have to go back to Thailand. I knew that Chris loves me a lot and so do I. We agreed to spend a life long together. It was true that we had made mistakes along the way but I have learnt it better now. Now I have met someone who loves me and I want to settle down as a family. Throughout my life I have had no one, I am a loner since my family was broken up. I had no one to consult but now I have Chris. He is a good man, a mature one who can look after me well. I went back to work again in Hallem 55 just to get enough money to clear the cost of keeping the South bank apartment plus my personal spending.
I was caught on the 5th July working in Hallem 55 and stayed overnight at the Immigration Detention Centre (IDC) for one night and two days. I was so scared that I would not see Chris again. When the police or the Immigration officer interviewed me, they showed me many pictures, which Peter Semos and Kay were in. They asked if I knew them. I said yes. They were the ones who conned me out of $11,000.00. I was very frightened and wondered whether I had been caught because of the visa matter of if someone had reported me. In fact, I already wanted to confess my illegal status and return to Thailand. So the process of getting married to Chris could be proceeded accordingly. Chris bailed me out to live with him at home. Chris loves me a lot. If I didn’t have him I might have been left forgotten in the IDC without being bailed. Chris showed that he loves me very much. All his family and friends are good people. Sometimes Peter Semos rang for money, Chris’ friend Dave, who was also my friend’s husband would talk to Peter, frightening him to stop ringing. Chris looked after me well and processed all papers for me to Thailand. When I was in difficulties, Chris would come to help with sincerity and showed that he loves me. And I love him too. Chris managed to extend my stay in Australia for 1 more month and I returned to Thailand legally. He paid for the ticket. He spent a lot of time being with me maybe be assumed that we might not have a chance to be together again.”
25. Since their enforced separation the applicants have remained in close and affectionate contact by telephone on a very regular (and costly) basis. The review applicant has also visited his wife on about 7 separate occasions. On various occasions he has taken his son, his father or his friend David Parkes with him. He also pays his wife’s living expenses and rental on the apartment. I am left in no doubt that the marriage is a genuine and subsisting relationship. I am also left in little doubt that the review applicant has been depressed and unhappy since his wife left and that his physical health has also been adversely affected by the recurrence of a peptic ulcer. So far as I can gauge without being able to observe her in person, the visa applicant has genuine feelings of love and respect for the review applicant. I think it highly unlikely that she has returned to prostitution in Bangkok. She plainly enjoys a close and happy relationship with the review applicant’s two children, and, surprisingly perhaps his former wife also holds her in high regard.
The Character Test
26. The first question to resolve is whether or not the visa applicant has been shown to be a person of good character.
27. There have been several useful expositions on the concept of good character embodies in s501 of the Act. A recent case in which the legislative provisions, the Minister’s Direction and the judicial and tribunal pronouncements have been reviewed is Ly and Minister for Immigration and Multicultural Affairs (2000) AATA 339 paragraphs 23 – 34 inclusive. The passage at paragraphs 52 – 54 might also be thought to have some relevance to the circumstances of the present case.
28. The respondent’s advocate made it quite clear that no reliance is placed upon the fact that the visa applicant has worked for a substantial part of her life as a prostitute. It is accepted apparently that prostitution per se is not necessarily unlawful and because it is not unlawful it does not reflect adversely upon character. Having regard to the “enduring moral quality” component of character assessment under the Act some people may care to debate this on a future occasion, but for present purposes, I am fully prepared to accept the respondent’s concession.
29. The key elements of the respondent’s contention that the applicant is not of good character have been mentioned in paragraph 6 above. In addition it was contended that she attempted to subvert the immigration system by making the arrangement which she did to pay Peter Simos to secure a visa for her. I have some difficulty with this issue because I have serious doubts that Simos ever did anything to secure a visa for her. I suspect he was simply a “con-man” who used his undoubted powers of persuasion to defraud her of $11,000. It may be argued that, nonetheless, she attempted to subvert the system and indeed admitted as much during her interview on 8 February 2002.
(Q. “Do you understand that paying someone money to get a visa is illegal?”
A.“Yes, but Peter always wanted my money. I was afraid he would tell migration. I had already pay [sic] $11,000. I was afraid I would lose everything”.)
I think the most appropriate way to approach this issue is to regard it as confirmatory of the applicant’s general recklessness towards compliance with migration law rather than as a specific example of her commission of a migration offence. Apart from anything else the premise contained in the question is too broad to be sustained, although in context it was no doubt understood by the visa applicant as referring to a visa obtained by fraudulent means or a fake document.
30. Turning therefore to the particulars contained in paragraph 6(a) – (d) inclusive of these reasons, I make the following observations:
(a)This allegation has been clearly established by the evidence and requires no further comment.
(b)The visa applicant may not have been specifically aware of the nature or mechanisms involved, but she willingly and recklessly signed the necessary documents to enable the application to be made.
(c)I repeat the observations made in respect of sub-paragraph (b).
(d)This allegation was also clearly established by the evidence.
31. The visa applicant cannot escape ultimate responsibility for reckless conduct of the kind referred to above. She may have been easily led, but I do not accept that there was any element of actual duress involved in her signature of relevant documents. (Exhibits “A” T54).
32. On 23 August 2001 as permitted by s499 of the Act, the Minister issued Direction No 21 providing guidance to decision-makers (including the AAT) in relation to visa refusals or cancellation under s501. Part 1 deals with the application of the character test and Part 2 deals with the exercise of a residual discretion which comes into play in the event of a determination that a visa applicant or holder fails the character test.
33. The allegation which the visa applicant must meet is that she is not of good character on account of her past and present general conduct (see s501(6)(c)(ii)). In considering this issue all relevant circumstances must be taken into account, but in particular, paragraph 1.9 of the Minister’s Direction says:
“In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case) and where they are relevant, would in the absence of any countervailing factors constitute a failure to pass the Character Test;
(a) …
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false and misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)…”.
34. In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon said (at pp 155-156):
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld."
35. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J said (at p94):
"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion ...
...
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry."
36. As previously mentioned these and other decisions were recently reviewed in Ly and Minister for Immigration and Multicultural Affairs. The visa applicant’s advocate vigorously submitted that his client passed the character test, but I disagree. In my opinion her conduct as a whole can and should be seen as amounting to contempt for and a challenge to the Australian immigration system. It may be assumed that significant taxpayer resources were involved in processing the protection visa application and review application to the RRT (notwithstanding its later abandonment). Equally reprehensible was the visa applicant’s use of a visitor visa to launch herself upon her career in sex work in this country and her overstaying any entitlement she may have had to be here by about 2 years. She and the review applicant said that they had discussed her surrender to authorities before she was caught in the brothel raid by migration officers, but the simple fact is that no such steps were taken by them before her apprehension. In reaching the conclusion which I have, I have not overlooked the sad circumstances leading to her initial involvement in prostitution in Macau, but she has never denied that she came to Australia fully intending to work in the sex industry. This admission is one of the few factors going to her credit in determining the character issue. In my opinion however she fails to pass the character test.
Discretionary Issues
37. The Minister’s Direction No 21, paragraphs 2.1 to 2.3 is in the following terms:
“2.1If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24. 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.
PRIMARY CONSIDERATIONS
2.3In 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.”
38. I will deal with primary consideration (c) first. The applicants have no children from their marriage or pre-marital relationship. The review applicant’s children from his first marriage have formed a strong attachment to the visa applicant, but it is now about 21 months since she has been in close and regular contact with them, although, as already noted Johnathon has visited her in Bangkok in company with his father on one occasion in December 2001. Johnathon gave oral evidence and impressed me as a genuine witness. I think that both he and his sister have felt the loss of the visa applicant’s companionship, but this is not to say that their relationship with her is of the same significance as it would be if they were separated from their natural mother.
39. It is apparent that the visa applicant’s command of English has improved somewhat since she first came to Australia. It is unlikely that she will regress with her language capabilities as she has regular telephone contact with the review applicant, but it has not been claimed that she is yet fluent in English. Nonetheless her lack of fluency has not been a real barrier in forming relationships with her husband, his friends and relatives. On the whole I do not see her enforced absence from Australia as impinging significantly upon the best interests of her step children. Indeed it may be noted that neither of them have any present awareness of her background or the reason for her return to Thailand. If she were to come back to Australia and the children or either of them were to become aware of the matters referred to in this case it may have an adverse effect upon them. I have already referred to the effect that separation is having upon the review applicant in paragraph 25.
40. As to primary consideration (a) regard must be had to:
(i) the seriousness and nature of the conduct;
(ii) the likelihood of repetition;
(iii) whether visa refused may operate as a general deterrent to others.
The nature of the visa applicant’s conduct falls within the category of misbehaviour which the Government regards as “very serious” (see Direction 21 paragraph 2.6(c)). The risk of repetition is minimal in relation to migration matters if the visa applicant is permitted to re-enter this country, but there could be a risk of improper dealing with other Government agencies. Overall I would not classify such risk as more than slight. As to general deterrence, I have often expressed the view, to which I adhere, that an approach which is consistently adverse to visa applicants who abuse the migration system will have and does have a generally deterrent effect upon like-minded individuals.
41. Notwithstanding these observations a balancing approach is required in determining whether or not to exercise my discretion favourably to the visa applicant. The sole factor which has caused me to hesitate in upholding the decision which is under review is the effect of an adverse determination upon the review applicant. In my view he is very much affected by his wife’s enforced absence and it would be totally unrealistic to expect him to give up his business and strong family ties in Australia and to re-establish himself with his wife in Thailand. On the other hand, and this is of particular importance, he married her knowing full well that she was in breach of migration rules. Indeed the marriage did not take place until after she had been taken into detention and subsequently released on his providing appropriate security. His awareness of her situation can be traced back to the early stages of their relationship. It can be observed, not unfairly, I think, that he must have been aware of the high risk he was taking in allowing the relationship to develop from that point onwards.
42. On balance I am not persuaded that the discretion should be exercised in the visa applicant’s favour. Accordingly the decision under review will be affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 31 March 2003
Date of Decision 27 May 2003
Counsel for the Applicant Mr James Wood
Solicitor for the Applicant Migration Agent
Counsel for the Respondent Ms Jennifer Greaves
Solicitor for the Respondent Blake Dawson Waldron
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