Lim and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 1341

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2002] AATA 1341

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   V2001/766

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BOU LIM

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date23 December 2002

PlaceMelbourne

Decision The decision under review is affirmed.

[Sgd S P Estcourt QC.,]

Deputy President

CATCHWORDS

Immigration - spouse visa - whether applicant fails to pass character test - past general conduct - false and misleading information - whether discretion should be exercised - Ministerial Direction No 21 - genuine marriage to an Australian citizen - degree of hardship to immediate family members - interests of children - decision to refuse affirmed.

Migration Act 1958 – s501

Re Prasad and Minister for Immigration and Ethnic Affairs (AAT Decision No 9822, 7 November 1994)

Goldie v Minister for Immigration and Multicultural Affairs (14 September 1999) FCA 1277

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAT 115

Re Chau and Minister for Immigration and Multicultural Affairs (2001) AATA 485

Re Chim and Department of Immigration and Multicultural Affairs (2001) AATA 484

Re Ngor and Minister for Immigration and Multicultural Affairs, AATA 353

REASONS FOR DECISION

23 December 2002 Mr S P Estcourt QC., (Deputy President)          

1. This is an application by Bou Lim (“the review applicant”) for the review of the decision of a delegate of the Minister for Immigration & Multicultural Affairs (“the respondent”) to refuse, pursuant to s501 of the Migration Act 1958 (“the Act”), to grant to the applicant’s wife Muoy Hieng Ung (“the visa applicant”) a Sub-class 309 (Provisional) Visa.

2. Section 501 of the Act provides relevantly:

“501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.

…

501(6)  For the purposes of this section, the person does not pass the character test if:

…

(c)       having regard to either of the following:

…

(ii)       the persons past and general conduct;

the person is not of ‘good character’.”

3. The exercise of power under s501 of the Act involves, first a consideration of whether the visa applicant is of good character and second, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.

4. In considering whether a non-citizen is not of good character, decision- makers are required by Ministerial Direction No. 21, (made under s.499 of the Act to provide guidance in making decisions to refuse or cancel a visa under s501), to consider a number of matters which where relevant, would in the absence of any countervailing factors constitute a failure to pass the character test.

5.      Ministerial Direction No. 21 binds the Tribunal.

6.      One of the matters which, if relevant, would in the absence of any countervailing factors, constitute a failure to pass the character test is:

“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.”

7. If a person fails to discharge his or her onus to satisfy the Tribunal that he or she passes the character test, then Ministerial Direction No. 21 requires the Tribunal when considering the exercise of the residual discretion under s501 of the Act to adopt a balancing process between three “primary considerations” and a number of “other considerations”.

8.      The three primary considerations are:

(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.

9.      A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No. 21, a consideration of:

(a)the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated;

(c)the likelihood that the visa refusal would prevent like offences by other persons.

10.     The “other considerations” are set out in Direction No. 21 and the Tribunal is required to take them into account, but generally accord them less individual weight than the three “primary considerations”. 

11.     In this respect, the Direction provides as follows:

“OTHER CONSIDERATIONS

2.17When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, it is appropriate that 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 may include:

(a)the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

·     Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

‘The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.’

Article 17.1 provides that:

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.’

(b)       genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

·     in assessing the compassionate claims of the Australian partner (Australian citizen, permanent resident or eligible New Zealand citizen), decision‑makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non‑citizen was of character concern at the time of entering into or establishing the relationship;

(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;

(d)family composition of the non-citizen’s family, both in Australia and overseas;

(e)the likelihood of the non‑citizen seeking to evade any outstanding legal matter or on‑going liability;

(f)the likelihood of the non‑citizen breaching any conditions attached to the outstanding legal or on‑going matter, any cost or bilateral implications of such a breach (eg extradition);

(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

(h)       any evidence of rehabilitation and any recent good conduct;

(i)        whether the applicant is for a temporary visa or a permanent visa;

(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellations provisions at section 501.”

12.     The Tribunal finds the following facts which are taken from the delegate’s decision under review:

“1.On 04/06/1997 the applicant, Ms UNG Muoy Hieng lodged this application for a subclass 309 (provisional) spouse visa.  In this application Ms Ung falsely declared that she was previously married to a TAING Meng (6/5/1952), that he had died 16/5/1992 and there were four children born from this relationship.  The applicant declared she received assistance in completing the application form from Vathou Thong of the Cambodian Association of Victoria.

2.The applicant provided a number of documents on lodgment of this spouse application including a bogus death certificate of TAING Meng, and birth certificates for her four children which are false in content.  These birth certificates wrongly state that TAING Meng was the natural father of the applicant’s four children.  All these certificates were obtained by Ms Ung from the local district attorney in Phnom Penh and they were issued on an as reported basis by the applicant, dated 15/5/1997.

3.On 9/2/1998, in response to a request for information, the applicant provided another completed application form [form 47] and again falsely declared TAING Meng as her former husband and failed to include her previous 13 year spouse relationship with the sponsor.  This application was completed with the assistance of Heng Phang of SICMAA.  Also provided by the applicant was a statutory declaration by LIM Bou Khieng dated 20/1/1998 in which the sponsor has falsely declared that he first met Ms Ung personally on 2/7/1995.

4.On 20/1/1999 the applicant lodged another completed form 47 application form in which she again falsely stated that she previously was married to TAING Meng from 1980 to 16/5/1992 and again failed to declare her previous relationship with the sponsor.

5.On 13/1/2000 an agent acting for the applicant and sponsor provided further information.  This included a statement headed ‘statutory declaration’ by Ms Ung falsely stating that she married TAING Meng in 1980 in Peam village, that there were four children from this relationship and that TAING Meng died on 16/5/1992 from high blood pressure and heart attack.

6.On 31/5/2000 the applicant’s agent, on instruction from their client, provided a letter stating that Mr LIM Bou Khieng [the sponsor] is the father of the four children of Ms Ung and that the sponsor and the applicant were in a de facto relationship between 1980 and 1990 whereupon they separated and Mr Lim reconciled with his first wife.  This relationship with his first wife broke down again in 1995 and they divorced in 1996.  In 1995, following his marriage break down with his first wife, Mr Lim returned to Cambodia to see the applicant and their relationship again reconciled.  The agent further provided that Ms Ung’s earlier statement headed ‘statutory declaration’ which stated that her four children of her marriage to TAING Meng is incorrect and her reason for this incorrect statement was because a friend had told them to put that on the form.  It is claimed that the applicant is not literate in the Cambodian language and has no understanding of immigration procedures and that she may not have understood the document she was signing.  It was further stated that ‘it seems that the applicant and sponsor have been misled by well meaning lay‑advisers which has resulted in incorrect information being given.’”

13.     Ministerial Direction No. 21 makes it clear that the Australian government regards serious offences against the Migration Act as very serious. This is not surprising as s234 of the Act makes it an offence, in connection with a visa application to make a false or misleading statement and provides a penalty for a breach of that section of 10 years imprisonment or a fine of $110,000 or both. I am satisfied therefore that the visa applicant’s conduct is serious notwithstanding, that she was not literate in the Cambodian language and was acting under the advice and influence of others.

14.     In Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT Decision No 9822, 7 November 1994), Deputy President McDonald observed:

“A decision about whether a person is of good character requires a consideration of an aggregate of qualities.  It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”

I respectfully agree. 

15. The notion of character within the context of s501 of the Act was explained by the Full Federal Court in Goldie v Minister for Immigration & Multicultural Affairs (14 September 1999) FCA 1277 at paras. 5-7, where Spender, Drummond and Mansfield JJ 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.”

16.     As is clear, general conduct also includes recent conduct and good and bad conduct must be taken into consideration in obtaining a complete picture of the non‑citizen’s character.  Relevantly therefore, it should be noted that there is no suggestion in this case that the visa applicant is of bad character other than in an immigration sense.  I am satisfied however that her migration misconduct on this occasion is of sufficient weight and seriousness to cause me to find that she does not pass the character test.

17. Turning to the residual discretion under s501 of the Act to nevertheless grant a visa in the face of a failure to pass the character test, Ministerial Direction No. 21 requires the Tribunal to adopt a balancing process between three “primary considerations” and a number of “other considerations”.

18.     A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, as I have already noted, a consideration of:

(d)the seriousness and nature of the conduct;

(e)the likelihood that the conduct may be repeated;

(f)the likelihood that the visa refusal would prevent like offences by other persons.

19.     As I have already said, Ministerial Direction No. 21 makes it clear that the Australian Government regards serious offences against the Migration Act as very serious. 

20.     As Deputy President McMahon said in Re Lachmaiya and Department of Immigration & Ethnic Affairs (1994) 19 AAR at 115-156:

“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.”

21.     As to the likelihood that the conduct may be repeated, the fact that her application is for a permanent visa renders it remote that this sort of behaviour would again manifest itself particularly as it now appears that she appreciates the gravity of her conduct and its repercussions.

22.     As to the question of general deterrence I am satisfied that in a case such as this, if the visa applicant is refused entry because of her breach of Australia’s migration laws, other persons similarly minded may be deterred form following suit.

23.     As Deputy President Wright noted in Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485 at para.25:

“In my opinion the only effective way of announcing loudly and clearly to prospective migrants from [Cambodia], that they must tell the truth in any application which they make, is by refusing visas to those who make use of fraudulent documents and untrue representations to gain entry into Australia.  As to the expectations of the Australian Community, it is my view that it is expected that non‑citizens will be open and honest with migration officials in relation to visa applications and the community would not expect a person who contravenes Australia’s migration laws to later be afforded the privilege of a visa.”

24.     Of the four children born to the review applicant and the visa applicant, two are now under 18.  They have never lived outside Cambodia and they presently attend school there.  Whilst it will no doubt be a disappointment to them that they are not able to live in Australia and whilst it is in their best interests that they reside with both their parents, those interests in this case do not outweigh the seriousness and nature of the conduct and the expectations of the Australian community.

25.     In considering the “other considerations” I note that the compassionate claims of the review applicant as an Australian citizen must be weighed.  I note however that having lived in an informal marriage relationship with the visa applicant for some 12 years, to which union four children were born, when he discovered that his first wife was still alive and living in Australia he left the visa applicant and their children, only returning to marry her after his relationship with his first wife had soured. 

26.     I also note that the review applicant said in evidence without equivocation that if his wife’s application is refused, he would not return to Cambodia to live with her and their children. 

27.     Moreover, in assessing the review applicant’s compassionate claims, it is important to note that whilst his marriage to the visa applicant is no doubt genuine, he must have known that she was of character concern at the time of marrying her as the evidence establishes that he was a party to the attempt to hoodwink the Australian authorities by the falsification of his wife’s marriage details and their children’s parentage. 

28.     I have carefully reviewed all of the “other considerations”, however, in this case I am wholly unable to find that they outweigh the primary considerations. 

29.     I note as Deputy President Wright noted in Chim and Department of Immigration and Multicultural Affairs [2001] AATA 484, that one can feel a great deal of sympathy for the visa applicant’s predicament. In reality her husband had no reason to fear that a truthful application would be unsuccessful and they were both obviously very badly advised. However, lying to subvert the administration of immigration procedures will almost inevitably lead to a finding that the perpetrator is not a person of good character. I also agree with Deputy President Wright, that it would be inconsistent with principle and precedent to allow sentiment to dictate the outcome of these proceedings. There is room for compassion in all cases such as this, as evidenced by the decision of Deputy President Forest in Ngor and Minister for Immigration and Multicultural Affairs (Form A 2000) AATA 353 (although that case did involve the well‑being of the applicant’s 14 year old son).  It must however be steadily borne in mind that the only effective way of announcing loudly and clearly to prospective migrants that they must tell the truth in dealing with migration officials is to demonstrate that the use of fraudulent documents and untrue representations will be visited with visa refusal.  The refusal of a visa in this case will convey a deterrent message back to Cambodia.

30.     Having considered all of the evidence, I have concluded that my discretion should not be exercised in the visa applicant’s favour and the decision under review is affirmed.   I so order.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  7 November 2002 
Date of Decision  23 December 2002
Counsel for the Applicant          Mr G Gilbert
Solicitor for the Applicant           T T O’Brien

Counsel for the Respondent     Mr P Barker
Solicitor for the Respondent      Australian Government Solicitor