Khorn and Minister for Immigration and Multicultural and Indigeno Us Affairs

[2003] AATA 705

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 705

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2001/1002

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Vantha Khorn

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date25 July 2003

PlaceSydney

Decision The Tribunal affirms the decision under review. 

...............................................

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – subclass 309 (provisional) spouse visa – refusal on character grounds – character test – past and present general conduct – examination of the Visa Applicant’s immigration history – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the Applicant – held that the protection of the Australian community against serious immigration misconduct outweighs the hardship to the Applicant – decision of the Respondent affirmed.

Migration Act 1958 ss 501(I), (6)(c)(ii)

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

25 July 2003 Mr RP Handley, Deputy President          

1.      This is an application by Vantha Khorn (“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 31 May 2001 to refuse the grant of a subclass 309 (provisional) spouse visa to the Applicant’s spouse, Bun Sokunny (“the Visa Applicant”).

2. This matter was heard on 15 April 2002 and 21 October 2002 when the Applicant was represented by Mr Ron Kessels, Solicitor. Mr Kessels withdrew from the matter on 21 October 2002. The hearing was concluded on 3 July 2003, when the Applicant was assisted by the Reverend Sombo Ek. The Respondent was represented by Sharon Hanstein, 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”), including supplementary T documents (“the S Documents”), together with the other documents produced by the parties. Evidence was given by the Applicant in person and by the Visa Applicant, Dr SK Law and Tork Yadine by conference telephone.

Background

3.      The Applicant, Vantha Ly Khorn (formerly known as Khorn Heng Teang), was born in Batdambang Province, Cambodia, on 7 April 1957 and is aged 46.  Mrs Khorn arrived in Australia from Cambodia on 16 December 1995.  She became an Australian citizen on 11 March 1998.

4.      The Visa Applicant, Bun Sokunny, was born in Kandal Province, Cambodia, on 29 September 1959 and is aged 43.  He is employed in two positions: in the international operations section of NCB – Interpol Cambodia and as Deputy-Director of VIP Security, a security company.

5.      Ms Khorn and Mr Bun first met in late 1994 when studying English at a private college.  On 4 March 1996, Mr Bun lodged an application for a subclass 300 (prospective spouse) visa sponsored by Ms Khorn (T p37).    On 15 July 1997, Mr Bun lodged an application for a subclass 676 (tourist short stay) visa (T p88).   This application was refused on 16 July 1997 (T p101).   On 6 October 1998, Mr Bun’s application for a subclass 300 visa was refused (S p213).

6.      On 26 March 1999, Ms Khorn went to Cambodia to visit Mr Bun.  On 25 April 1999, Mr Bun and Ms Khorn were married in Phnom Penh, Cambodia.

7.      On 26 April 1999, Mr Bun lodged an application for a subclass 676 (tourist short stay) visa using the identity of Eang Sokhom.    This application was refused on 7 May 1999 (T p180). 

8. On 8 May 1999, Ms Khorn returned to Australia. On 10 June 1999, Mr Bun lodged an application for a subclass 309 (spouse) visa at the Australian Embassy in Phnom Penh (T p147). On 31 May 2001, Mr Bun was interviewed at the Australian Embassy (T p198). On 31 May 2001, a delegate of the Respondent decided to refuse the grant of a visa to Mr Bun on the ground that he did not pass the character test because of his past and present general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”).   

9.      On 12 July 2001, Ms Khorn lodged an application for review of this decision with the Tribunal.

Relevant Law and Policy

10. 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 are 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;…

11.     Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa.  Clause 309.225 requires that, at the time of the decision, the Visa Applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:

either

(a)the Applicant satisfied the Minister that the Applicant passes the character test; or

(d)the Minister has decided not to refuse to grant a visa to the Applicant despite not being satisfied that the Applicant passes the character test.

12. 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”..

13. 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.

14. The issue for the Tribunal to determine in this case is, therefore, whether Mr Bun is not of good character having regard to his past and present general conduct so as to be precluded from the grant of a subclass 309 (provisional) spouse visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

Evidence

Vantha Khorn (the Applicant)

15.     Ms Khorn said both her parents are still alive and living in Fairfield in Sydney and are now Australian citizens.  She has one older brother and one younger brother who are also living in Fairfield and are Australian citizens.  Her parents live with her younger brother and his family.   Ms Khorn said her older brother was born in 1952 and is married with two children both of whom are adult although they still live at home.  Her older brother works at the Clipsal factory at Bankstown.  His wife does not work.  They have bought their house and have a mortgage.  Her younger brother was born in 1967 and is also married with two children but his children are aged about seven and five.  Her younger brother works in the Commonwealth Bank where Ms Khorn thinks he is an assistant manager.  His wife also works at the Commonwealth Bank.  Ms Khorn said she does not live with her younger brother and her parents because her brother only has a three bedroom house and it is too small to accommodate her as well.

16.     Ms Khorn was separated from her family at the age of about 18 in 1975 during the Pol Pot regime.  She was living in a different province in Cambodia and did not see her family again until 1994 when she met her mother who had returned to Cambodia from Australia for a visit.  Ms Khorn said that during the Pol Pot years she worked very hard but was not beaten.  She was very sad to be separated from her family and very lonely living on her own.  In 1995, Ms Khorn applied to migrate to Australia sponsored by her brother under the Special Assistance Category for Cambodians.  Her application was accepted and she arrived in Australia on 16 December 1995 and went to live with her older brother for about a month at Horsley Park.  She then moved to Cabramatta to be close to the English school where she was studying.  She is now living with a friend in Cabramatta.

17.     Ms Khorn said she is close to her family and sees her mother three or four days a week.  Because she is the only daughter, it is important for her to be in Australia to provide support for her mother.   Although her mother is sick and very weak and has lost a lot of weight, nobody has been able to pinpoint her health problem.  If her mother feels sick, Ms Khorn gives her a massage.  Otherwise, she will often take her to the temple or take her shopping.  She also telephones people on her mother’s behalf when necessary.  Ms Khorn said her father’s health is also not good and he suffers from high blood pressure and a poor memory.  Her older brother’s wife  helps care for Ms Khorn’s mother and will sometimes drive her if she needs to go somewhere.   However, her sister-in-law cannot speak English.  Ms Khorn said her brothers help too, but they have their own family responsibilities. 

18.     Ms Khorn said she first met her husband in October 1994 at a private college where they were both studying English.  They started to go out together, their relationship became closer and in April 1995 they became engaged. This was approximately one month after she lodged her application to migrate to Australia.   However, the visa which Ms Khorn was granted stated that she could not marry before coming to Australia.   She was not then aware that she had an obligation to inform the Department of her change of circumstances and therefore she did not inform them that she had become engaged.    She did not know whether she should tell the Department or not and she was worried that she might not be able to visit her mother if she did so. 

19.     Ms Khorn said she and her husband had originally planned to marry in November 1995.  Therefore, Mr Bun applied to migrate to Australia as her fiance.  Ms Khorn was shown the visa application form lodged by Mr Bun in March 1996 (T p45).  She said that Mr Bun had completed the form himself after she had filled in the sponsor’s part and sent the form to him in Cambodia for completion.  After Mr Bun lodged the form, he applied for a tourist visa to come to Australia.  Ms Khorn said she knew he was applying but did not know the exact date of his application.

20.     Ms Khorn said in 1997 she changed her name from Khorn Heng Teang because she preferred the name Khorn Vantha Ly.  She became an Australian citizen in 1998.

21.     Ms Khorn said her husband was notified of the refusal of his prospective spouse visa in October 1998 and that she was aware of this when she went to Cambodia to visit her husband and with a view to getting married in 1999.  Before that visit, she and Mr Bun wrote to each other each week and spoke to each other a lot on the telephone.  She had wanted to visit Cambodia before 1999 but she did not have very much money because she was not yet working.  Ms Khorn arrived in Cambodia on 26 March 1999 and she and Mr Bun were married on 25 April 1999.  The following day, her husband lodged an application for a visitor visa in the name of Eang Sokhom, but she was not aware of this until after she returned to Australia on 8 May 1999.  She did not discover that he had made a visitor visa application in a false name until he was completing his subclass 309 spouse visa application when he told her about it on the telephone.  She was very upset and cried.  Her husband told her that he had used the false name to enable him to follow her to Australia.

22.     With her husband’s subclass 309 application, she sent him the application form from Australia having filled out her part.  On lodging the form, he was informed that it would take between six and 12 months for it to be processed.  When Mrs Khorn learned that Mr Bun had made a visitor visa application in a false name, she was aware that this was a “big mistake” and told her husband that he must write to the Embassy to inform them of what he had done.  He therefore did this. 

23.     Ms Khorn said she studied English at Cabramatta for 510 hours in 1996/1997 and thereafter received unemployment benefit until she obtained work as an egg packer at Pace Farm where she worked either a morning or afternoon shift.  On 30 January 2003,  she departed Australia for Cambodia returning on 7 March 2003.  She went to reunite with her husband and felt relieved to be with a person she truly loves.  He took care of her and was very attentive.  She felt the hard times had lifted because they were together.  During her stay, they travelled around Cambodia.  Even though her husband was very busy at work, he considered her as his first priority.  As the time for her departure came closer, he became sadder and sadder and, at the airport, he was crying as she was leaving. 

24.     After returning to Australia, Ms Khorn tried to keep busy by looking for work but she started getting migraines again and had no one to share her feelings with except her Minister, Reverend Ek.  So, on 28 April 2003, at the suggestion of Reverend Ek, she returned to Cambodia to be with her husband.  This time they did not go out much but stayed at home together except while her husband was at work.  Ms Khorn returned to Australia on 1 June 2003 with more understanding of her situation.  She again looked for work and on 17 June 2003 commenced a new job at OK Enterprises, a company selling flowers and plants, where she deals with orders and dispatch.  She works eight hours a day, five days a week.

25.     Ms Khorn said the Minister has helped her with everything including looking for jobs and driving her to interviews.  He has been very kind, has supported her 100 per cent and has encouraged her to look forward to life.

26.     Ms Khorn said she was very happy to be with her husband in Cambodia but not as happy as she would be if they could be together indefinitely in Australia.  She wants to remain in Australia so that she can look after her mother but she also wants her husband with her.  He is a good man who would not do anything stupid again.  She guarantees this and apologises on his behalf.  The things he did wrong he did for her, in order to try and be with her.   She continues to telephone him a few times a week.  She worries about him.  Previously, when telephone calls were more expensive, she wrote to him once a week, but now, with the availability of telephone cards, the telephone is much cheaper.

27.     Ms Khorn said she enjoys her job but will continue to look for a better job and, if her husband is able to come to Australia, she would like to continue her studies.  The offer of a job for her husband from Flower Power came about as a result of her landlord, who works at Flower Power, being able to arrange the job.  Ms Khorn has not herself spoken to anyone at Flower Power.

28.     Ms Khorn has been seeing a psychiatrist, Dr Law, for sometime.  She often sees him monthly.  Since meeting the Reverend Ek, she has had more hope for the future as a result of his support.  She can discuss her problems with him and he has supported her emotionally and shown her the way to God.  She still sometimes does not want to live any more.  She gets no support from her family.  Her brothers are too busy with their own lives.

Bun Sokunny (the Visa Applicant)

29.     Mr Bun said his father is dead but his mother is still alive and he lives with her and his sister in Phnom Penh.  He also has three brothers living in Cambodia.  Mr Bun said he is not related to his wife.  He finished high school in year 11 and started work in 1993 as a police officer with the Ministry of Interior.  He continues to work as a police officer in the Interpol section dealing with international operations where he is now the Deputy.  His job involves research into the trafficking of women and children and sexual exploitation.  There are 33 staff working under him and his boss.  Once an investigation is complete, he may be involved in rescuing children held illegally in Cambodia.  He works eight hours a day, six days a week in this position starting in the mornings but, since 1999, he has also worked for a private security firm owned by the Ministry called VIP Security as the Deputy-Director.  VIP Security is a private company but managed by the Ministry of Interior.  The company provides security services for factories and hotels.  Mr Bun has a managerial role and is responsible for negotiating with clients of the company as to what needs to be done and a contract price for undertaking those services.  VIP Security employs about 500 staff who report to him and he in turn is responsible to the Director.  He works for VIP in the afternoons about eight hours a day, six days a week.  He is paid for both his jobs.

30.     Mr Bun said he first met Ms Khorn in late 1994 when they were studying English at the same private college.  They became friends and started going out together and fell in love.  They had decided to get married before his wife left for Australia.  The first time he became aware that she was applying to migrate was when she told him that she was having a physical examination.  He was sad and worried and hoped his wife would be able to sponsor him for migration to Australia where they could get married.  After she left Cambodia, they corresponded by letter and spoke by telephone at least three times a week.

31.     Mr Bun said he applied for a prospective spouse visa in about March 1996 and then for a visitor visa in July 1997.  An Australian friend, Mike Kearney, helped him with his application for a visitor visa.  He met Mr Kearney in his work for Interpol.  There were two reasons for wishing to visit Australia: first to attend a police training course in Queensland and, second, to see his fiance and get married.  Both his application for a visitor visa and his application for a prospective spouse visa were refused.

32.     However, Mr Bun said that when his wife visited to Cambodia in 1999 they decided to get married.  He had been aware that he could appeal against the rejection of his application for a prospective spouse visa but his wife said it might be quicker if they were married in Cambodia and he applied for a spouse visa.  Mr Bun was asked about the spouse visa application lodged on 10 June 1999 and why he had not revealed in the application, in answer to question nine, that he had been known by another name.  Mr Bun said that he had been assisted by a friend in completing the application which was done in a rush and he did not check the form.  If he had realised that he had included a wrong answer to question nine, he would have revealed that he had previously used the name of Eang Sokhom.  Mr Bun was asked why he had not mentioned that a friend, Yin Channora, had helped him complete the visa application form when he was asked about this at the interview at the Australian Embassy on 31 May 2001.  Mr Bun said that he completed most of the form himself and did not think it necessary to mention his friend’s name.

33.     Mr Bun acknowledged that on the day after he and Ms Khorn were married, he lodged another application for a visitor visa in the name of Eang Sokhom.  Mr Bun said his friend in the police force at Interpol, Yin Channora, had also helped him fill out this form.  He had paid one of his supervisors at the Ministry of Interior, In Sarin, US$1,000 for the use of that identity in order to obtain promotion and also so that he could apply for a visa to visit his wife in Australia.  He did not tell her about the application.  Mr Bun said he applied for a visa in this new name because he hoped the Australian immigration authorities would not realise he was the same person and would grant him a visa to see his wife.  He had already had two applications in the name of Bun rejected.  The visitor visa application included family documents, bank account details, and a document from Interpol, all of which were false.  When, at the end of 1999, his visitor visa application was rejected, he was embarrassed and stopped using the name Eang Sokhom, and has always used his real name since.

34.     Mr Bun said, at the time, he did not consider whether what he did was right or wrong.  He just missed his wife so badly and wanted to be with her and he thought this might achieve that.  Buying names in Cambodia used to be normal but the Government has now prohibited this.  He now realises that what he did was wrong.

35.     Mr Bun was asked about his interview at the Australian Embassy in Phnom Penh on 31 May 2001.  He said he was nervous at the interview and told the officer that he gave the US$1,000 for use of the identity Eang Sokhom to Lam Buntha.  This was incorrect although because Lam Buntha and In Sarin worked together, Mr Bun thought the money would, in fact, be shared between the two of them.  

36.     When giving evidence on 21 October 2002, Mr Bun said it wa In Sarin who encouraged him to take the false identity and provided him with the false documents.  Mr Bun could not remember what he said at the interview at the Australian Embassy on 31 May 2001 because he was very nervous.  Lam Buntha and In Sarin were working in the same room at the time Mr Bun purchased the false identity.  He did not want to reveal that he gave In Sarin the US$1,000 in payment for the false identity because he was in the more senior position.   It was a lie when he said he paid Lam Buntha US$1,000.   It was In Sarin who organised the false documents.  Mr Bun reiterated that he has never used the false identity again since his visitor visa application was refused.

37.     Mr Bun was asked about his application for a prospective spouse visa in March 1996 and why he stated that he was unemployed (T p49).  He said that he did this because he was afraid that if he revealed he was a police officer, this would complicate his application.  He was also afraid that Interpol might go bankrupt and that his employment would be terminated.  He was asked about a statement from Michael Kearney, dated 20 March 2002, in which Mr Kearney stated that Mr Bun had told him that his visa application would not be successful if it was known that he was a Cambodian police officer, because they were considered corrupt and dishonest.  Mr Bun said he could not remember exactly what he discussed with Mr Kearney.  It was a long time ago. 

38.     Mr Bun was asked about the spouse visa application which he lodged after he and Ms Khorn were married.  He acknowledged that he did not reveal in the form that he had been known by another name – Eang Sokhom.  He had not told his wife of this at that time.  When he did tell his wife, about a month after she returned to Australia in 1999, she cried and was very angry with him.  In January 2000, he wrote a letter to Sarah Fuller, a Senior Migration Officer at the Australian Embassy in Phnom Penh, disclosing his use of the false identity (T p184).  Mr Bun said he wrote this letter because he was scared and worried about his application.  It was put to Mr Bun that the explanation in his letter to Ms Fuller that Eang Sokhom had returned to his job at Interpol and Mr Bun had decided to leave his current position was false.  Mr Bun said he was confused and missing his wife.  His intention was to inform the Department that he no longer used the name of Eang Sokhom. 

39.     Mr Bun said that if he is permitted to come to Australia, he will do whatever work he can.  He would like a job of a similar kind to that which he has experience of, but he will do whatever job is available.  His wife has told him of the Flower Power job offer but he has not spoken to anyone at that company about the offer.

40.     Mr Bun said when Reverend Ek telephoned him to say that Mrs Ek was in Batdambang and that he feared for her safety, Mr Bun interrupted his trip to Kampong Saom and drove to Batdambang because he feared for Mrs Ek’s safety especially as she was an Australian citizen.  He responded to Reverend Ek’s request because he believes this is part of his duty to foreigners as a police officer.

Reverend Sombo Ek

40.     Reverend Ek is a Cambodian Pastor working at Cabramatta Uniting Church as a Lay Minister.  Ms Khorn is a member of his congregation.  He has known her since about June 2002 but, in December 2002, he realised she was in need and offered his help.  He sees her at least twice a week: at church on Sundays and when she attends for bible studies on Fridays.  He also sees her if she needs his help.  Reverend Ek said he encouraged her to be strong and agreed to come with her to assist at the hearing.   Ms Khorn told him how she misses her husband and how she often feels hopeless:  that she does not want to live any more, that her life is not important,  that she does not want to continue working and has thought of finishing her life.  He sits and prays with her and encourages her to be strong.   Ms Khorn still cries every time she talks with him although she now seems stronger and he has encouraged her to keep working.

41.     Ms Khorn told him how she was going to Cambodia in late January 2003 and he asked whether she could help his wife on her visit there in February 2003.  Ultimately, he accompanied his wife to Cambodia arriving in Phnom Penh on 17 February 2003.  Mr Bun and Ms Khorn met them at the airport and Mr Bun arranged for all their needs including a hotel and transport around the city.  Then on 18 February 2003, Mr Bun arranged for their transport to Batdambang, a province about 300 kilometres from Phnom Penh, where he and Mrs Ek were going to visit her relatives.  While Reverend Ek only stayed a few days in Batdambang before leaving to return to Australia, his wife stayed on.  When Reverend Ek returned to Phnom Penh, he contacted Mr Bun who again arranged a safe hotel for him before Reverend Ek returned to Australia.

42.     After his return to Australia, he telephoned his wife in Cambodia on 11 March 2001 in the morning to see if she was OK.  She told him she was very scared, that there had been demonstrations and violence between Thai and Cambodian nationals, that all the markets were closed and she had been robbed.  She believed the situation was very dangerous and asked for his help.  Reverend Ek was unable to go to Cambodia, so he telephoned Mr Bun and asked if he could help.  Mr Bun was on his way to Kampong Saom, which is south of Phnom Penh, at the time.  Mr Bun replied that he would go to Batdambang, which is to the west of Phnom Penh, as soon as he had finished his work, to ascertain the situation there. That evening, at approximately 8 pm Australian time, Reverend Ek telephoned his wife once again and she told him that Mr Bun had already arrived in Batdambang.   Reverend Ek felt very relieved.

43.     Reverend Ek agreed that Mr Bun’s mistakes tend to suggest that he is not a good person.  However, on his short visit to Cambodia in February 2003, Reverend Ek found Mr Bun to be very helpful and considerate of his and his wife’s needs.  If Mr Bun is permitted to come to Australia, Reverend Ek said he will keep a close eye on him and provide an opportunity for Mr Bun to work in his congregation doing voluntary work.  He understands that Ms Khorn has also been able to arrange a job for Mr Bun with Flower Power.

Chantha Ek

44.     Mrs Ek, Reverend Ek’s wife, said she first met Mr Bun when she and her husband arrived in Phnom Penh on 17 February 2003.  She had met Ms Khorn previously at bible classes organised by her husband.  Mr Bun and Ms Khorn met them at the airport and took them to a hotel and Mr Bun then organised transport for them to Batdambang on the next day.  Her husband returned to Phnom Penh on 20 February 2003 and fighting started in Batdambang on the following day.  When Mrs Ek went to the market on 1 March 2003, her bag, containing US dollars and local currency, was snatched.  She was very frightened and did not know what to do, particularly because a lady she knew in Batdambang had been killed in the fighting.  Her first thought was that she might not be able to return to Australia to her husband and children.  Fortunately, at about 10 am her husband telephoned and she was able to tell him that she was frightened for her safety.  She asked her husband to return to Cambodia and although he said he was unable to do so, he said he would contact somebody to look after her. 

45.     About 4.30 pm that day, Mr Bun came to her hotel, her husband having contacted him.  Mr Bun took her to buy some food because she had not eaten since that morning, all her money having been stolen, and because most restaurants were closed or only open to persons known to those who worked in the restaurants.  The following day, Mr Bun drove her back to Phnom Penh and took her to a safe hotel.  She was still very traumatised by her experiences and Mr Bun was always there when she needed help.  He took her to the bank so that she could withdraw some money, and after two trips to the airline ticket office, which she found to be closed, he drove her to the airport where they agreed to change her ticket to allow her to return to Australia early and so that she could depart on 11 March 2003. 

46.     Mrs Ek said that she got to know Mr Bun during this time and considers him a kind person who is always ready to help other people, especially homeless children.  She said he is a religious person who studies the bible, plays music and who helps with his local congregation.  Mrs Ek said that after Mr Bun came to Batdambang, she no longer feared for her life.  Without him, however, she felt her life was under threat and, even in Phnom Penh, she felt that if she went outside, she might get shot at.  Mr Bun provided her with the reassurance and assistance that she needed.  He is the kind of person who helps others.

Dr SK Law

47.     Dr Law is a consultant psychiatrist to whom Ms Khorn was referred by her general practitioner.  He first saw her in August 2001 when she complained of broken sleep and other symptoms of anxiety and depression including pain in the limbs.  Dr Law said he saw Ms Khorn on five occasions in 2001, on 10 occasions in 2002 and has seen her on five occasions so far in 2003, most recently on 2 July 2003.  She is suffering from anxiety and depression and has complained of forgetfulness, poor concentration, broken sleep and sharp pains, for example, in the top of the head.  He has prescribed anti-depressant medication to help her sleep better and calm her.  Her current medication is Avanza, half a tablet at night.  He has limited her medication so that this does not affect her ability to work.

48.     Dr Law said they speak together in English and he has attempted to supply her with supportive counselling.  Ms Khorn is able to maintain a reasonable conversation in English although she might have difficulty in expressing things which require some subtlety of language.  She has told him that she is seeing a Pastor who is being very supportive, and Dr Law said he thought this had had a positive effect, with some improvement in her condition in the last few months.

49.     Dr Law acknowledged that he could not attribute all Ms Khorn’s symptoms to her husband being refused a visa.  Traumatic events which she may have experienced in the past may also have contributed to her present mental condition.  However, she is a strong person who is very honest and trying her best to deal with the situation.  Dr Law said if her husband was able to join her in Australia this would have a positive effect on her condition.

Tork Yadine

50.     Mr Yadine provided a Statutory Declaration dated 25 February 2003 in which he stated that he is Manager of the Hawaii Hotel in Phnom Penh and that Mr Bun is a friend.  They met in 2002 at the New Life Church.  Mr Yadine was aware of Mr Bun’s visa problems.  Mr Bun told him that the reason his visa application was refused was because he told lies.  Mr Yadine said he thought somebody at the Australian Embassy had told Mr Bun that he should change his name so that his visa application would be successful and so Mr Bun followed this advice.  Mr Bun was also told that in order to speed up the processing of his visa application, he could pay an additional sum of money.

51.     Mr Yadine said, in his view, Mr Bun is an honest person and of good character.  In his Statutory Declaration, he said Mr Bun loves his wife and misses her very much and is depressed and lonely without her. 

Submissions

Respondent

51.     Ms Hanstein said the Respondent contends that the Visa Applicant is not of good character in the light of:

·     His purchasing and use of a false identity for employment purposes and in order to obtain a visa to come to Australia.

·     His applying for a visa using a false identity involving the provision of false and misleading information and false documents.

·     The provision of false or misleading information in other visa applications including his concealing the fact that he had made a visa application using a false identity.

·     His untruthfulness when answering questions at the departmental interview on 31 May 2001 when he said that the person from whom he obtained the false identify was Lam Buntha, when by contrast, he told the Tribunal during the course of the hearing that it was In Sarin who provided him with the false identity and false documents.  The Respondent contends that Mr Bun changed his evidence because he thought Lam Buntha was going to give evidence at the hearing.  Mr Bun’s explanation that he was nervous at the interview on 31 May 2001 and thought that because In Sarin and Lam Buntha worked in the same office they were both involved, is not credible.  The Respondent contends that these are examples of Mr Bun being prepared to change his story when he believes this will advantage him. 

52.     Ms Hanstein noted that in Mr Bun’s 1996 prospective marriage visa application, he stated he was unemployed and explained to the Tribunal that this was because he believed Interpol might go bankrupt and that his position was uncertain.  This is contrary to Mr Kearney’s statement that the reason for Mr Bun stating that he was unemployed was because he did not want it known that he was a police officer as a result of the perception that Cambodian police officers were dishonest and corrupt.  Ms Hanstein noted that at the interview on 31 May 2001, Mr Bun said his then employment was with VIP Security and that his employment in the Interpol office had ceased in 1999.

53.     Ms Hanstein noted Mr Bun’s explanation that he had used the false identity out of desperation to be with his wife.  She contended that however desperate a person, a person of good character would still not apply for a visa using a false identity and involving the extensive provision of false and misleading information and false documents.  She noted that it was at the suggestion of Ms Khorn that Mr Bun wrote to the Australian Embassy to tell them of his use of the false identity.

54.     With regard to the character evidence, Ms Hanstein noted that part of Mr Yadine’s evidence was at odds with Mr Bun’s evidence both to the Department and the Tribunal.  Moreover, although both Reverend Ek and his wife have given evidence as to Mr Bun’s good conduct, that evidence is not sufficient to establish that Mr Bun is of good character.  The Respondent submits that he fails the character test by reason of his past and present general conduct.

55. With regard to the exercise of the Minister’s discretion under s 501(1) of the Act and the guidelines set out in Direction No 21, Ms Hanstein said presenting false or forged documents and making a false or misleading statement in connection with entry or stay in Australia is regarded as a very serious offence, as is assuming a false identity for the purpose of obtaining an advantage in relation to one’s employment. She said the Visa Applicant’s untruthfulness suggests a likelihood that such misconduct might be repeated. While the Reverend Ek has offered his support, there is nothing to say that this will prevent future misconduct. Ms Hanstein noted that the offer of employment from Flower Power had been arranged through Ms Khorn’s landlord, there being no evidence that Flower Power know anything of Mr Bun’s background and behaviour.

56.     With regard to deterrence, Ms Hanstein contended that immigration misconduct is common in Cambodia and the refusal of a visa to Mr Bun would act as a deterrent to others who may contemplate providing false and misleading information in connection with visa applications.  Moreover, the Australian community would expect that non-citizens who have assumed false identities and engaged in such blatant breaches of Australia’s immigration laws should not be granted visas.

57.     With regard to the other considerations to which the decision-maker is referred by Direction No 21, Ms Hanstein said the Respondent recognises that the refusal of a visa to Mr Bun will cause distress to Ms Khorn.  Nevertheless, Dr Law noted that her condition has improved recently and that she is a strong woman.  She also has employment and has the support of Reverend Ek in dealing with her problems.  Moreover, while Ms Khorn might prefer to live in Australia, she always has the option of returning to Cambodia to live, as is demonstrated by her two periods there earlier this year.

58.     Less weight should also be given to the hardship to Ms Khorn because of the circumstances surrounding the commencement and continuation of their relationship.  Ms Hanstein noted that the relationship commenced while Ms Khorn was still living in Cambodia and at the time that she was applying to migrate to Australia.  She took no steps to include Mr Bun in her application at that stage.  She must have been aware that there was a possibility of Mr Bun not being permitted to come to Australia.  However, while on the one hand Ms Hanstein acknowledged that Ms Khorn’s mother might suffer hardship if Ms Khorn went to live in Cambodia, on the other hand, her two sons and their families are living in Australia and able to provide their support and, indeed, she lives with her younger son and his family.

Applicant

59.     Reverend Ek said the Applicant does not dispute Mr Bun’s past misconduct.  He told Mr Bun that he would help him become a better person and Mr Bun responded as such a person when he gave assistance to Mrs Ek when she was in danger in Cambodia, possibly saving her life.  Reverend Ek said he was relieved when he knew that Mr Bun was taking care of his wife, noting Mr Bun’s evidence that he would have helped any foreigner who found themselves in such a situation.  If Mr Bun is permitted to come to Australia, Reverend Ek promised “to keep his eye on him” and thought Mr Bun would not commit any further misconduct.

60.     Reverend Ek said he was very aware of Ms Khorn’s distress at her separation from her husband.  Since Mrs Ek has been in Cambodia and had fears for her safety, Reverend Ek appreciates the difficulties Ms Khorn would face living in that country.  Moreover, in Cambodia, bribery and corruption are normal everyday practices and Mr Bun was not initially aware of Australian attitudes towards these matters.

Application of the Law and Findings

61.     As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Bun passes the “character test” having regard to his 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 …

In ReMsumba 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 (Godly 1999 FCA 1277).

62. 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, Mr Bun, 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.

63.     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)).

64.     Before making a determination on the application of the character test, it is appropriate that the Tribunal set out relevant findings.  The Applicant does not dispute that Mr Bun purchased a false identity that he used to obtain promotion in his employment and in an application for a visitor visa for Australia lodged on 26 April 1999.  With that application, he lodged false documents.  Mr Bun has given several different versions of his account of from whom he purchased the identity for US$1,000 – in earlier accounts, he said he purchased the false identity from Lam Buntha and, in later accounts, he said from  In Sarin.  The Respondent suggests that Mr Bun changed his evidence because he was aware that Lam Buntha might be called to give evidence.  Mr Bun denies this.  He said both men worked in the same room and he initially did not want to make a statement against In Sarin because In Sarin held a more senior position than Lam Buntha.

65.     On file there is a statement from Lam Buntha dated 5 June 2002 confirming Mr Bun’s later account.  However, Mr Lam was not called to evidence and the Respondent is understandably sceptical that both Mr Lam’s and Mr Bun’s accounts are self-serving.  Mr Lam does, however, confirm that until mid – 1999 the purchase of “ghost positions” was an ordinary matter.  As Reverend Ek acknowledged, bribery and corruption is “normal” in Cambodia.

66.     The Tribunal finds, on the balance of probabilities, that Mr Bun’s recent evidence as to having paid the US$1,000 for the false identity and documents to In Sarin is the true version, but recognises that Mr Bun’s conduct with regard to all aspects of his use of a false identity undermines his credibility.

67.     The other false and misleading statements raised by the Respondent are Mr Bun’s statement in his March 1996 prospective marriage visa application that he was unemployed and his statement at interview on 31 May 2001 that he was only working for VIP Security and not for NCB Interpol – Cambodia.  Giving evidence on 3  July 2003, Mr Bun explained the former by saying he was not confident at the time of his continuing employment with NCB Interpol – Cambodia because he thought they were bankrupt.  However, in giving evidence on 15 April 2002, Mr Bun said he did not want to reveal he was a police officer because that might lead to his being asked a lot of questions (Transcript 15 April 2002 pp42-43).  This seems to be similar to Mr Kearney’s untested statement of 20 March 2002 that Mr Bun told him that he did not want to be tarnished by perceptions that Cambodian police officers were corrupt and dishonest.

68.     As to Mr Bun’s statement at interview on 31 May 2001 that he was only working for VIP Security and not for NCB Interpol – Cambodia, he has not offered any credible explanation for this.  The Tribunal assumes this was part of his attempted cover-up for the events relating to the false identity.

69.     All of this leads the Tribunal to conclude that Mr Bun does not pass the character test by reason of his past general conduct.  The Tribunal notes, however, the Reverend Ek’s and Mrs Ek’s evidence of his recent good conduct and Ms Khorn’s evidence of this, which are discussed below.

70. Having decided that Mr Bun 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 Mr Bun. 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.

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.

72.     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…

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).

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.

73.     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”.

74.     With regard to the first primary consideration, the Tribunal considers that Mr Bun’s breaches of Australia’s immigration laws and, in particular, his use of a false identity, his lodging false documents, and his making of false and misleading statements should be regarded as very serious misconduct.  A person’s truthfulness in the immigration process is of paramount importance.   The Tribunal notes that it was at his wife’s request that Mr Bun wrote to the Australian Embassy in January 2000 (T p184), revealing that he had used a false identity in his 1999 visitor visa application.  Even then, he did not tell the truth about his current job situation, stating that Eang Sokhom had returned to his former employment and that Mr Bun had decided to leave his employment with the Interpol office.

75.     As to the likelihood that the misconduct will be repeated, the Tribunal notes that all the misconduct, except the statement that Mr Bun was unemployed made in his 1996 prospective marriage visa application, relates to or is a follow-on from his use of the false identity in the 1999 visitor visa application.  However, even in his evidence to the Tribunal, there were inconsistencies in what Mr Bun said on different occasions.   For example, in relation to the statement in the 1996 applications that he was unemployed, he gave different explanations in giving evidence on 15 April 2002 and 3 July 2003.

76.     Thus, the Tribunal concludes that Mr Bun is prepared to dissemble where he perceives it is to his own advantage.  There is, therefore, some risk that he might do so again.

77.     As to deterrence, the Tribunal accepts that the refusal of a visa in such circumstances might deter others from committing similar misconduct, especially in a country where bribery and corruption are reportedly commonplace.

78.     With regard to the second primary consideration, the expectations of the Australian community, the Tribunal considers that the community would expect that in such a case of immigration misconduct a visa would not be granted.  The third primary consideration, the Best Interests of the Child, is not relevant in this case. 

79.     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;  the non-citizen’s business and other ties to the Australian community; genuine marriage to an Australian citizen, bearing in mind the circumstances in 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; and any evidence of rehabilitation and any recent good conduct.

80.     There is no dispute that the relationship between Ms Khorn and Mr Bun is a genuine marital relationship..  The Tribunal finds that Ms Khorn migrated to Australia in 1995 when she was engaged to Mr Bun and that she must have known there could be difficulties in his migrating to Australia to join her.  Nevertheless, the Tribunal accepts that her separation from her husband is causing her significant distress and is probably the principal cause of the anxiety and depression from which she is currently suffering.  She has been treated for this condition for nearly two years by Dr SK Law, Consultant Psychiatrist, who gave evidence of her condition at the hearing.   He saw some recent improvement in Ms Khorn’s condition as a result of the support and counselling received from her local Minister, Reverend Ek.

81.     Reverend Ek also gave evidence of Ms Khorn’s distress and depression.  His support has obviously been of significant benefit to Ms Khorn in dealing with her present predicament.  Ms Khorn has visited Cambodia on two occasions in 2003 and spent approximately four to six weeks there with her husband on each occasion.  The option of her living with her husband in Cambodia is obviously open to her.  However, the Tribunal accepts that she would be leaving her family in Australia and, in particular, her elderly mother who is in poor health.  Nevertheless, her mother lives with her husband and younger son and his family and her other son and his family live nearby.

82.     Lastly, the Tribunal notes the Reverend Ek’s and Mrs Ek’s evidence of Mr Bun’s recent good conduct in supporting them in Cambodia.  The Tribunal also accepts Ms Khorn’s evidence of her husband’s kindness and support.

83. Weighing up the primary and other considerations, the Tribunal concludes that the primary considerations, in particular the need to protect the Australian community against serious immigration misconduct and the expectation of the community that in the case of such misconduct a visa would not be granted, outweigh the other considerations, and the discretion in s 501(1) should not be exercised in Mr Bun’s favour. The Tribunal is aware of and regrets the distress that this decision will cause to Ms Khorn but considers that the primary considerations carry paramount weight. The Tribunal therefore affirms the decision under review.

I certify that the preceding 83 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  15 April 2002, 21 October 2002, and
  3 and 4 July 2003
Date of Decision  25 July 2003
Representative for the Applicant               Self represented 
Representative for the Respondent          Ms S Hanstein, Solicitor