Kouch and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 233

DECISION AND REASONS FOR DECISION [2002] AATA 233

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/864

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Hout Kouch
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley

Date9 April 2002
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that LOR Sok Luch passes the "character test" pursuant to s 501(6) of the Migration Act 1958.
  ..............................................
   R P Handley
   Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – character test – involvement in criminal conduct - past and present general conduct - visa application malpractice – best interests of the child – best interests of the child not outweighed by the protection or expectations of the Australian community
Migration Act 1958 ss 234, 234(1), 501, 501(1) (6), 501(6)(b)(c), 501(6)(c)(ii)
Chan and Minister for Immigration and Multicultural Affairs [2001] AATA 487
Chevez and Minister for Immigration and Multicultural Affairs [2001] AATA 849
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Mackey and Minister for Immigration and Multicultural Affairs [2001] AATA 472
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Sim Dam and Minister for Immigration and Multicultural Affairs [2001] AATA 649

REASONS FOR DECISION

9 April 2002 R P Handley

This is an application by KOUCH Hout ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 30 May 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, LOR Sok Luch ("the Visa Applicant").
At the hearing, the Applicant was represented by Ray Turner, Solicitor, of Yandell Wright Stell Lawyers and 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 AdministrativeAppealsTribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and in person by the Applicant and Michael Wilson.
BACKGROUND
The Applicant, Mr Kouch, was born in Cambodia on 2 January 1978 and is aged 24. He migrated to Australia with his mother and two brothers arriving on 16 July 1997 and was granted Australian citizenship on 26 January 2000. Mr Kouch was 17 when, on 4 December 1995, he signed the application for a subclass 104 visa lodged by his mother, DIEP Kim. Mr Kouch is a baker with Golden Sunshine Hot Bread in Lithgow, a business which he and his two brothers own.
The Visa Applicant, Ms Lor, was born in Cambodia on 14 June 1981 and is aged 20. Mr Kouch was introduced to Ms Lor through his cousin and, after they had been in communication by phone and letter, they decided to get married and Mr Kouch travelled to Cambodia to meet Ms Lor about a week before the date of the wedding. They were married on 1 March 2000. On 3 April 2000, Ms Lor's application for a subclass 309 spouse (provisional) visa was lodged at the Australian Embassy in Phnom Penh. On 14 May 2001, Ms Lor was interviewed at the Embassy and, on 30 May 2001, a delegate of the Respondent decided to refuse the grant of a subclass 309 visa to Ms Lor on the ground that she was not of good character because of her past and present general conduct: in particular, that when applying for the visa, she provided false information, made bogus claims and made a number of false declarations. On 21 June 2001, Mr Kouch lodged an application for a review of this decision by the Tribunal.
On 22 October 2001, Ms Lor gave birth to a daughter, Jenny Kouch, who is an Australian citizen by registration.
RELEVANT LAW

Under s 501(1) of the Migration Act 1958 ("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 grounds in the current matter are paragraphs (b) and (c), as follows:
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been, or is involved in criminal conduct; or
(c ) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…

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.
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".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Lor passes the character test having regard to either whether she has or has had an association with a person, group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct, or whether having regard to her past and present criminal conduct or past and criminal general conduct. If the Tribunal decides she 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 subclass 309 visa.
EVIDENCE

LOR Sok Luch (the Visa Applicant)

Ms Lor said when she applied for a spouse visa, she had not yet started to learn English. Her husband therefore completed the application form for her to lodge at the Embassy. Ms Lor said she has just started to learn English but still does not understand very much. She said her husband told her that his mother's name was DIEP Kim and that his brothers are KOUCH Chhay and KOUCH Heng. Ms Lor said she gave birth to her daughter, Jenny, on 16 October 2001. The father of her child is KOUCH Hout and Jenny's birth has been registered at the Australian Embassy in Phnom Penh.
Ms Lor said her mother's name is SE Sok Khon and her elder sister is LOR Sok Heng. She is close to her sister. Ms Lor said she started working with her mother at the Olympic Market about two or three years ago but stopped doing this when she was pregnant, a few months before she was due to give birth. Her sister also works at the Market, but in a different business, and has done so for about the last five years. When Ms Lor worked in the markets, she used to see her sister every day.
Ms Lor says she lives with her mother. Her sister lives about 10 minutes away near the Olympic Market whereas Ms Lor's family lives near the Chinese Embassy. Her sister lives with her husband and his elderly mother, father and their family. Ms Lor does not know her sister's mother-in-law's name but her sister's husband's name is CHIV Sok Ou. Her sister and her husband have two children aged 5 and 3 ½ years. Ms Lor said her sister stopped living with Ms Lor's family when she married in January 1996. Her sister comes to visit them at the house now and then.
Ms Lor said her sister and CHIV Sok Ou went out together before they got married. Ms Lor said she went to their wedding but does not know whether her husband, KOUCH Hout, or her husband's mother, DIEP Kim, went to the wedding. She said she did not know them at that time.
Ms Lor said she and her husband were introduced by her husband's cousin, YOUNG Ly Lai, who also used to be in the same class as her at school. Ms Lor said she does not know who Ms Young's parents are, but she is not related to her brother- in-law CHIV Sok Ou. Ms Young told Ms Lor of a person in Australia who was looking for a wife. She then came to see Ms Lor's mother to obtain her permission for Mr Kouch to contact her.
Ms Lor said Mr Kouch then telephoned her on 5 June 1998 and it became apparent that they understood each other. She told Mr Kouch about her parents and sister and brother-in-law and he spoke to them all on the phone. Ms Lor said her husband told her that he is not related to her brother-in-law, CHIV Sok Ou. Mr Kouch and CHIV Sok Ou came to know each other as in-laws at her wedding where, as far as Ms Lor knows, they met for the first time. Ms Lor said she could not remember saying at the interview on 21 May 2001 that CHIV Sok Ou was the foster uncle of her husband. She was very nervous at the interview.
Ms Lor said her husband told her that his name was KOUCH Hout and that his mother's name was DIEP Kim. Ms Lor has not been told that her husband is known by any other name apart from his name in English, which is Jack. Ms Lor recalled telling the departmental officer at the interview on 14 May 2001 that her husband's sponsor to come to Australia was DIEP Cheng Meng. She said her husband told her of this after the Tribunal hearing in December 2001, but she did not recall how she came to know this at the time of the interview in May 2001.
Ms Lor said she first met her husband in person in February 2000, shortly before they got married. Until then, they had communicated by way of letters and telephone calls two or three times a month. She said she was able to get to know Mr Kouch quite well through these means and fell in love with him. When her husband came to Cambodia at the time of their wedding, he was there for approximately a month and, Ms Lor agreed, that he had spent some time with CHIV Sok Ou after the wedding, as was usual with a person who was a brother-in-law.
Ms Lor recalled being interviewed at the Australian Embassy in Phnom Penh on 14 May 2001, being given an information sheet about the visa requirement of being of good character (T165), and being told that giving false and misleading information might lead to her visa being refused. Ms Lor said all the information included in her visa application was true and correct. She understood, at that time, that the Department was considering refusing her visa application. She could not remember whether the departmental officer suggested that her husband have DNA testing to establish his relationship to CHIV Sok Ou. Ms Lor could not recall whether she mentioned the possibility of DNA testing to her husband but said she did not mention this to CHIV Sok Ou. Mr Turner suggested that the Departmental Officer "badgered" Ms Lor over this issue.
Ms Lor said she is very lonely in Cambodia without her husband and it is very difficult for her bringing up her child, Jenny, with her getting sick.
KOUCH Hout (the Applicant)
Mr Kouch said he works as a baker at the family business in Lithgow which is owned by himself and his two brothers, Chhay and Heng. Chhay is the Manager of the business, although the business belongs to all three of them. Mr Kouch said he arrived in Australia on 16 July 1997. He has lived in Australia for the past five years, and became an Australian citizen on 26 January 2000. Mr Kouch said when he came to Australia in 1997, he came with his mother and two brothers on a multiple travel visa. He said his mother's brother, DIEP Cheng Meng was the sponsor for their migration to Australia. Mr Kouch said he told his wife the name of their sponsor after the Tribunal hearing in December 2001. He said he did not tell her this before that time, and had not discussed in detail how he came to Australia. However, he said it is possible that his brother Chhay may have told his wife this previously because they also sometimes speak on the phone and Mr Kouch is not always present.
Mr Kouch said he completed his wife's visa application form because she does not speak English. He said the information included in the application was correct and the family book which accompanied it was supplied by him. He said his cousin, YOUNG Ly Lai, introduced him to Ms Lor. Mr Kouch told his wife that his name was KOUCH Hout, that his mother's name was DIEP Kim and that his elder brother was Chhay and his younger brother was Heng. Mr Kouch said that he first met his wife in person when he flew to Cambodia a week before their wedding. He stayed with Ms Lor for about a month during which time they had their honeymoon in Bangkok. Since the wedding, Mr Kouch has said he was been to Cambodia on three other occasions, for a week, two weeks, and, most recently, in October 2001 when he arrived just before his daughter Jenny Kouch was born and stayed for about a month.
Mr Kouch said his daughter will have a much better life in Australia than in Cambodia with a better home, food, healthcare, education and the chance of finding a good job. She will also learn to speak English fluently which will be a great advantage to her. Mr Kouch said he would not go back to Cambodia if his wife's visa application is refused. He would stay in Australia. Currently, he sends his wife approximately $500 per month, which he takes with him if he is going to Cambodia, or which he gives to friends who are going to Cambodia to pass to her. He will continue to do this if Ms Lor has to stay in Cambodia with their daughter. Mr Kouch said he could not work as a baker in Cambodia because people do not eat much bread. It would be hard for him to get a job and, in Cambodia, he would not have the support of his family. He said his home and job are in Australia, and it is very hard for him with his wife being in Cambodia.
Mr Kouch mentioned that his wife had told him that he could take a DNA test to establish his relationship with CHIV Sok Ou, but the departmental officer did not put this in writing asking him to have this test.
Michael Wilson
Mr Wilson said he is the Regional Inventory Officer with Delta Electricity and is a good friend of Jack Kouch and his family. Mr Wilson said he was formerly a Councillor on Lithgow City Council until the last Council election and it was through being a Councillor that he became involved with Mr Kouch in mid 2001 when he was asked for assistance. Mr Wilson organised letters of support for Mr Kouch from the Mayor and the Economic and Development Manager of Lithgow Council and from their State and Federal MPs. After the Tribunal hearing in December 2001, Mr Wilson organised a story for the local newspaper, The Lithgow Mercury and, launched a petition to support Jack. The Petition (A4) has approximately 1600 signatures to date.
Mr Wilson said he has lived in Lithgow all his life and has a good feel for opinion in the community. He said the petition suggests that there is strong support for Mr Kouch in the community and that the community's expectation is that Mr Kouch's wife should be permitted to live in Australia. Mr Wilson said he is aware of the allegations about Mr Kouch's mother concerning the applications she made to migrate to Australia.

SUBMISSIONS

Mr Turner, for the Applicant, noted that the Respondent contends that Ms Lor does not pass the character test by reason of her association with Mr Kouch because of his involvement in criminal conduct, namely a breach of s 234 of the Act. Mr Turner submitted that the criminal conduct in question must be so bad that Ms Lor should be excluded from Australia. He noted that s 234(1)(b) makes it an offence, in connection with entry to Australia or with an application for a visa, to make a false statement. The Tribunal should note, in particular, that paragraph (b) requires, first, that the statement must be to the person's knowledge, and, second, be "false or misleading in a material particular". Mr Turner noted that Mr Kouch was aged 17 when his mother lodged the application for a subclass 104 visa, signed by Mr Kouch, on 4 December 1995.
Mr Turner said it was both Ms Lor's and Mr Kouch's evidence that Ms Lor's application for a subclass 309 visa lodged on 3 April 2000 was correct to the best of Ms Lor's knowledge. Mr Turner said it is not normal between spouses to need to prove the relationships between family members to whom a spouse claims to be related. In any case, Mr Turner said it is not relevant to Ms Lor's application as to how many brothers Mr Kouch has and so it cannot be argued that her application is false and misleading in a material particular. Moreover, Mr Kouch's Family Book and his statutory declaration are also not false and misleading in a material particular because they are not material to the relationship between Mr Kouch and Ms Lor. Mr Turner pointed out that the penalties for breach of s 234(1) were amended with effect from 22 July 1999, so that the maximum penalty for this offence is now imprisonment for 10 years or 1,000 penalty units or both. Previously, and at the time Mr Kouch's mother lodged their subclass 104 Application on 5 December 1995, the maximum penalty was imprisonment for 2 years.
With regard to Direction No. 21, Mr Turner noted that s 499(2) only empowers the Minister to give directions that are consistent with the Act or the regulations. Thus, where Direction No. 21 refers to offences under the Migration Act in relation to false statements or documents provided in connection with a visa application, it can only be referring to s 234. Thus, in accordance with s 234(1), in the present case any such statement or document must, to the person's knowledge, be false or misleading in a material particular. Mr Turner said the Applicant submits that many of the T Documents are irrelevant. What is relevant is Ms Lor's state of knowledge at the time her application was lodged. Ms Lor's evidence to the Tribunal is that she relied on her husband who completed the application on her behalf, and she believed the application to be correct. This is supported by Mr Kouch's evidence that he told his wife that the information in the application was correct.
Mr Turner contended that the Respondent's case is based on allegations only and noted that the Federal Court decision in Minister for Immigration andEthnic Affairs v Pochi (1980) 44 FLR 41 at 67-68, where Deane J noted the well-established principle:
that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation

Mr Turner said that the Respondent draws too many inferences, many of which are tenuous and remote. He noted that the reasonable suspicion test referred to in Chan and Minister for Immigration and Multicultural Affairs [2001] AATA 487, still requires that the suspicion be reasonable in the circumstances, which in turn requires that there should be reasonably probative material to support that suspicion. Mr Turner referred the Tribunal to the preamble to Direction No. 21 where, in the second paragraph, the Minister's responsibility both to protect the community "from criminal or other reprehensible conduct" and to refuse to grant visas to non-citizens "whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it" are referred to. Mr Turner submitted that Ms Lor's conduct in the present matter was nothing like this.

Mr Turner noted that paragraph 1.5 of Direction No. 21 states that the meaning of "association" for the purposes of the character test refers to being "involved in criminal activities". There is no suggestion that Mr Kouch is involved in criminal activities. There is only an allegation that when he was 17 years old, he was involved in a criminal act. This is long before Ms Lor knew him. Mr Turner submitted that reliance on the association ground should fail. With regard to paragraph 1.9 of the Direction and "past and present general conduct", Mr Turner submitted that references to breaches of immigration law in paragraph (a) should be read in conjunction with s 234(1). In summary, the Applicant submits that Ms Lor does not fail to pass the character test.
With regard to the exercise of the Minister's discretion in s 501(1), and the guidance provided to decision-makers by Part 2 of Direction No. 21, Mr Turner submitted that the Australian community has nothing to fear from Ms Lor. Indeed, the community of Lithgow has said it will welcome her. This has been expressed not only through a petition, but also through letters of support from the elected representatives of the community at each of the three tiers of government: the Mayor and the State and Federal Members of Parliament. Mr Wilson's oral evidence also supports this contention.
With regard to the seriousness of the alleged conduct, Mr Turner submitted that this is at the lower end of the spectrum of seriousness, there is no likelihood of repetition because there will be no need if Ms Lor is granted a visa, and, with regard to deterrence, even if the allegations are true, there is little likelihood that a teenager would be deterred. With regard to paragraph 2.6(c), Mr Turner noted that no evidence had been provided by the Respondent to show the sentences that particular crimes against the Act may attract.
Mr Turner submitted that the most important primary consideration in this case is the best interests of the child. He noted that Jenny Kouch is an Australian citizen and, with regard to paragraph 2.16(h) of Direction No. 21 and the circumstances of the probable receiving country, that Mr Kouch has given unequivocal evidence that Jenny's life chances will be far greater if she lives in Australia. Mr Turner noted that if Ms Lor's application for a visa is refused, this will be denying Jenny, an Australian citizen, the right to be in Australia.

With regard to the relationship between Mr Kouch and other family members, Mr Turner said that as Ms Lor told the interviewing departmental officer, this application is about Ms Lor and her husband and, other relationships are not relevant to their application. Mr Turner questioned the relevancy of determining who told Ms Lor who DIEP Kim's sponsor was. As to the relationship between CHIV Sok Ou and Mr Kouch, Ms Lor gave evidence that they are brothers-in-law, who, after the wedding, naturally spent some time together.

Mr Turner referred the Tribunal to its decision in Chevez and Minister for Immigration and Multicultural Affairs [2001] AATA 849, where Mr Chevez, who was illiterate had relied of the advice of a migration agent who acted on his behalf. The Tribunal found that Mr Chevez did not intentionally make any false statements in the application forms and statements completed by the migration agent for Mr Chevez. In Mackney and Minister for Immigration and Multicultural Affairs [2001] AATA 472, Ms Mackney relied on others. The Tribunal found that such reliance on others "did not show a deficiency in her enduring moral qualities such as to make it for the public good to refuse her entry". In Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, the best interests of a child favoured Mr Lam remaining in Australia despite his having served 8 years in respect of a heroin offence. Finally, Mr Turner referred the Tribunal to the decision in Sim Dam and Minister for Immigration and Multicultural Affairs [2001] AATA 649, a matter involving a Cambodian visa applicant, where the respondent focused on false information given by the visa applicant as a demonstration of bad character.

In conclusion, Mr Turner submitted that Ms Lor accepted the truth of the matters set out in the application which had been completed for her and, at the interviews in May 2001, she confirmed the information because she believed it was true. Mr Turner submitted that Ms Lor passes the character test, or in the alternative, the Minister's discretion in s 501(1) should be exercised in her favour.

Respondent

Ms Hanstein, for the Respondent submitted that Ms Lor had made three statements in her visa application which the Respondent contends are false or misleading: that KOUCH Hout has not been known by any other name, that his parents were KOUCH Leng and DIEP Kim, and that KOUCH Hout's only siblings are KOUCH Chhay and KOUCH Heng. Furthermore, when Ms Lor was interviewed by the departmental delegate in Phnom Penh, Ms Lor confirmed that her visa application was true and correct, thereby confirming the false or misleading statements set out in her visa application, and stated that CHIV Sok Ou is her brother-in-law and the foster uncle of Mr Kouch. The Respondent also contends that Ms Lor provided the following false or misleading documents in relation to the identity and family composition of Mr Kouch and his family: the Family Book of Mr Kouch, the Statutory Declaration of Mr Kouch dated 15 May 2001 (T p168), and the letter from CHIV Sok Ou dated 14 May 2001 (T p166). Ms Hanstein submitted that the relevance of these false or misleading statements go to whether Ms Lor fails to pass the character test by reference to s 501(6)(b) or (c).

Ms Hanstein referred the Tribunal to a Table of Comparisons attached to the Respondent's further statement of facts and contentions which compares the subclass 104 visa application made by HAK Ngoc Eng on 1 December 1993 (S1) and the subclass 104 visa application made by DIEP Kim on 4 December 1995 (FS p266). The Respondent contends that DIEP Kim was previously known as HAK Ngoc Eng and that KOUCH Chhay, KOUCH Hout and KOUCH Heng were formerly known as CHIV Sok Chai, CHIV Sok Houth, and CHIV Sok Heng respectively. Ms Hanstein noted that the ages of the three Kouch sons in the visa application dated 4 December 1995 are younger than the ages of the three CHIV sons stated in the 1 December 1993 visa application, presumably because part of the reason for the 1993 application being rejected was the age of the sons.

Ms Hanstein also referred the Tribunal to the photographs provided with the visa application made on 1 December 1993, the visa application made on 4 December 1995 and an application by CHIV Sok Ou for a subclass 456 business visa dated 5 March 2001 (S6). Ms Hanstein submitted that these photographs support the Respondent's contention that the family unit of DIEP Kim is in fact the family of HAK Ngoc Eng and, that there is a reasonable suspicion that Mr Kouch and his immediate family provided false or misleading information relating to their identities and family composition in connection with the subclass 104 visa application made on 1 December 1995.

Ms Hanstein said the Respondent accepts that for an offence to be committed under s 234(1)(b) of the Act, the statement must be "false or misleading in a material particular". The Respondent contends that the materiality of the false or misleading statements lies in the concealment of the sponsor's true identity by providing false and misleading information. Ms Lor was seeking to be sponsored by a person who was only in such a position by reason of his immigration malpractice. Moreover, the false and misleading statements were made by Ms Lor knowingly. Ms Hanstein questioned why Ms Lor did not use the opportunity of the offer of DNA testing to establish that Mr Kouch and CHIV Sok Ou were not brothers. Ms Lor told the departmental officer at interview, that CHIV Sok Ou was the foster uncle of her husband. Yet, when giving evidence to the Tribunal, she said she did not know. The Respondent contends that this later evidence should not be accepted and that she must have discussed these matters with CHIV Sok Ou and her husband in the course the processing of her visa application.
With regard to s 501(6)(b) and the "association" ground, Ms Hanstein said the Respondent contends that the person who gave false information is Mr Kouch. It is clear from his evidence and that of Ms Lor, that he completed Ms Lor's visa application. The Tribunal need only have "reasonable suspicion" that the person, group or organisation with whom the visa applicant has an association is involved in criminal conduct. She referred the Tribunal to the decision in Chan and the Minister for Immigration and Multicultural Affairs [2001] AATA 487, where the Tribunal was mindful of the guidance provided in Migration Series Instruction No. 254 at paragraph 4.6.3:

The reasonable suspicion test is met if the decision-maker's suspicions are aroused by the evidence available to him/her the suspicion is an honestly held suspicion and reasonable in the circumstances.

The Respondent contends that Mr Kouch, by providing false information, is involved in criminal conduct, namely a breach of s 234 of the Act.

With regard to the exercise of the s 501(1) discretion, Ms Hanstein said, referring to paragraph 2.6(c) of Direction No. 21, that offences "attracting a sentence of imprisonment of 12 months or more" is a reference to the available sentence and not to the actual sentence handed out on conviction for such an offence. With regard to the likelihood that the conduct may be repeated, the Respondent contends that Ms Lor might be prepared to provide false and misleading information to others and that refusing her a visa would deter others from trying to rely on false identities. As to the expectations of the Australian community, the Respondent recognises that it is a fully informed community whose expectations are relevant and questioned whether the Lithgow community were fully informed of the allegations made against Mr Kouch when providing him with their support. The Respondent contends that the Australian community as a whole would not find that the provision of false and misleading information is acceptable conduct.

With regard to the Best Interest of the Child, Ms Hanstein noted that Jenny Kouch is a very young child and Ms Lor is with her outside Australia. There will be no disruption to the child's life if a visa is refused and, on the basis of Mr Kouch's evidence, the child and her mother are receiving and will continue to receive financial support from Mr Kouch. Finally, with regard to Other Considerations, Ms Hanstein submitted that the hardship to Mr Kouch should be given little weight because his conduct may have given rise to the problems in this case. Moreover, Ms Lor has never been to Australia and has strong family ties in Cambodia. Ms Hanstein noted the large number of references provided for Mr Kouch. She contended that these should not affect the Tribunal's assessment of what has occurred in the past.

APPLICATION OF THE LAW AND FINDINGS

As stated above, the first issue for the Tribunal to determine is whether Ms Lor passes the character test: in particular, does she have an association with a person whom the Minister reasonably suspects has been involved in criminal conduct (s 501(6)(b)); or, having regard to her past and present general conduct, is she a person who is not of good character (s 501(6)(c)(ii))? If the Tribunal decides that, in its view, Ms Lor does not pass the character test, the Tribunal must proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa. In determining these issues, the Tribunal will be guided by Direction No. 21.

Looking first at s 501(6)(b), the Tribunal notes paragraph 1.5 of Direction No. 21 which states that the meaning of "association" encompasses a very wide range of relationships with a person, group or organised body involved in criminal activities. The Respondent relies on Ms Lor's association with Mr Kouch and alleges that he was involved in criminal activity in relation to his inclusion in the application for a subclass 104 visa made by his mother, DIEP Kim, on 4 December 1995. Moreover, the Respondent also contended that Mr Kouch provided further false information in relation to the composition of his family for the purposes Ms Lor's visa application and, provided a written statement as to his family composition dated 15 May 2001 (T p168) for this purpose which is also false.

The Tribunal notes that on 4 December 1995 Mr Kouch was 17 years old. His involvement in the visa application lodged by his mother was probably no more than his signing the application. There is certainly no evidence that he was knowingly involved with criminal conduct in relation to the application. With regard to Mr Kouch's completing the visa application for his wife, and submitting a Statutory Declaration dated 15 May 2001 (T p168), while the Respondent has raised questions about the similarity of the persons included in the visa application made by HAK Ngoc Eng on 1 December 1993 and members of Mr Kouch's family, these questions are not supported by sufficient evidence beyond the two visa applications themselves to enable the finding of a suspicion which is reasonable in the circumstances. There is no question as to Ms Lor's association with Mr Kouch, but the nature of the criminal activity alleged by Mr Kouch is not, in the Tribunal's view, sufficient to enable the Tribunal to be satisfied that the person does not pass the character test by reason of s 501(6)(b) of the Act.

With regard to s 501(6)(c)(ii) and Ms Lor's past and present general conduct, regard must be had, 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 324, the Full Federal Court said

The concept of "good character" in s501 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 s 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) 31 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).

The Tribunal must also have regard to Part 1 of Direction No. 21 as a guide to the application of the "character test". Paragraph 1.9 of Part 1 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 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 is paragraph 1.9(b) which directs the decision-maker to consider:
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 or misleading statement or false or misleading declaration.
The Tribunal finds that Ms Lor relied on her husband to complete the visa application form on her behalf and provide the relevant accompanying documents with that application. Ms Lor is not literate in English and, it seems to the Tribunal, has little understanding of Australia's migration system. On the basis of Ms Lor's and Mr Kouch's evidence, the Tribunal finds that Ms Lor did not knowingly provide a bogus document or make a false or misleading statement in connection with her visa application. Indeed, the Tribunal is not satisfied that bogus documents were provided with her visa application or that the application contained any false or misleading statements. The Tribunal does not find the answers given by Ms Lor to questions put by the departmental officer interviewing her on 14 May 2001 provide any significant evidence of wrong-doing on her part. On the contrary, the record of interview indicates that Ms Lor was probably bewildered by the process. The Tribunal therefore concludes that there is no evidence related to Ms Lor's past and present general conduct to support a determination that she is not of good character. Thus, with regard to the first issue for the Tribunal to determine, since neither paragraph (b) nor (c) of s 501(6) has been established, Ms Lor is taken to have passed the character test.

The Tribunal notes that even if it were to find that Ms Lor does not pass the character test, it would exercise the 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 Lor be excluded from Australia. The Tribunal has not found that Ms Lor made a false or misleading statement or provided false information in relation to her visa application. While the Lithgow Community may not be aware of the allegations made against Mr Kouch in respect of his identity and that of members of his family, these are only allegations. Certainly, the support indicated by the letters from the democratically elected representatives of Lithgow, and by the petition, indicate a significant level of support within the community for Mr Kouch and his family.
The third of the three primary considerations to which the Tribunal is directed by Direction No. 21, the Best Interest of the Child, is also relevant. Jenny Kouch, who was born in Cambodia on 16 October 2001, and who continues to live there with her mother, Ms Lor is, nevertheless, registered as an Australian citizen by virtue of the citizenship of Mr Kouch, acquired on 26 January 2000. The Tribunal notes the decision of the Full Federal Court in Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 where the Court identified at paragraph 32 the approach to be adopted where the best interests of a child are concerned. First, the decision-maker must identify the best interests of the child with respect to the exercise of section 501(1) discretion and, second, the decision-maker must assess whether the strength of any other consideration, or the cumulative effect of other consideration outweighs the best interests of the child understood as a primary consideration.

Applying this approach, as is recognised in paragraph 2.15 of Direction No. 21, in general terms "the child's best interest will be served if the child remains with its parents". Mr Kouch's evidence is that he will not return to live in Cambodia if his wife is denied a visa. The consequence of this and general acceptance of the fact that the health and education systems in Australia are better than those in Cambodia, indicates that Jenny's best interests will be served if her mother is granted a visa.
Against this primary consideration, the Tribunal must weigh other primary considerations. However, in this case the best interests of the child are not outweighed by other primary considerations. Neither the Protection nor the Expectations of the Australian Community require that Ms Lor should be excluded from Australia. Moreover, Other Considerations, in particular, the hardship to both Mr Kouch and Ms Lor should the visa be refused, tend to support the exercise of the discretion not to refuse the grant of a visa.

The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that LOR Sok Luch passes the character test pursuant to s 501(6) of the Migration Act 1958.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing                  7 March 2002
Date of Decision                  9 April 2002
Solicitor for the Applicant                         Mr R Turner
Solicitor for the Respondent                   Ms S Hanstein