Ly and Minister for Immigration and Multicultural and Indigenous Affairs

CATCHWORDS – IMMIGRATION – Spouse visa – character test – false and misleading information - whether of good character – failure to pass character test – whether discretion should be exercised – deterrence to others – decision affirmed.

Migration Act 1958 ss. 20, 31, 234, 499 and 501

Migration Regulations 1994 cl. 309.225 of Part 309 of Schedule 2

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353

DECISION AND REASONS FOR DECISION [2003] AATA 1033

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2002/791
GENERAL ADMINISTRATIVE DIVISION     )

Re NGO LENG LY

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  13 October, 2003
Place:  Melbourne

Decision:The Tribunal affirms the decision of a delegate of the respondent dated 19 June, 2002.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 23 July, 2002, the applicant, Mr Ngo Leng Ly, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 19 June, 2002. That decision was to refuse to grant to Ms Chur Ngouv a Sub-class 309 (Spouse) (Provisional) Visa on the basis that she did not pass the character test within the meaning of s. 501 of the Migration Act 1958 (“the Act”).

At the hearing, Mr Ly was represented by Ms Soch and the Minister by his solicitor, Ms Greaves. Regard was had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”), a report by Dr Ley Chea dated 3 July, 2003 with attachments, statutory declarations by Ky Suy Hy, Ren Fan Yao and Taing Suy Yeang, a Bulletin of Criminal Record and a Certificate of Attitude, a statement by Ms Ngouv and various medical reports relating to Mr Ly’s condition. Oral evidence was given by Mr Ly in support of his case together with Ms Chur Ngouv.

THE ISSUES

The first issue is whether Ms Ngouv passes the character test set out in s. 501(6) of the Act. If she does not pass that test, the second issue is whether the discretion in s. 501(2) should be exercised to refuse to grant her the visa.

BACKGROUND

There is no dispute between the parties regarding the facts forming the background to the application. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.

Mr Ly, who was born on 4 August, 1945, arrived in Australia on or about 7 June, 1982. On 7 May, 1987, he was granted Australian citizenship. Mr Ly has previously been married and has three children from that marriage. He and his first wife were divorced in 1992 and, since his separation, he has not had any contact with either his first wife or his children. In approximately 1995, he was injured at work and, until recently, has been living on compensation payments for his work-related injury. He now receives Newstart Allowance but has a medical certificate and is not required to look for work.

Ms Ngouv was born in Kratie Province on 1 July, 1954 and before the Khmer Rouge regime. Her father’s name was Lay Chun Faat and her mother’s was Gwaan Daan Chong. She has brothers, the youngest of whom is Lay Sieu Tai, and the older of whom are Lay Dak, Lay Heang, Ngo Shui and Ngo Shun. Her sister is Ngo Chun. Her parents were traders in the Kratie market but her father died during the Khmer Rouge regime and her family was separated. Ms Ngouv’s mother died in 1980 and a brother died. Her youngest brother, Lay Sieve Tai, and she fled abroad but did not reach their intended destination and spent the next five years in Galang Camp in Indonesia.

On 3 February, 1997, Ms Ngouv lodged an application for a Subclass 676 (Short Stay) Visa (“Short Stay Visa”), in which she stated that she was married. Documents were lodged in support of her application. A document headed “Tax Department” stated that Ms Ngouv operated Bunchan Import-Export & Construction Co Ltd and its object was stated to be the Bunchan Chur Construction Material Shop. A document purporting to be a Car Lease Agreement between Ms Ngouv and her husband, Mr Bunchan Kresna and Mr Ak Oun, leased a car for a period of 12 months from 15 January, 1997. In a letter to the Australian Embassy in Phnom Penh, Ms Ngouv stated that she was the wife of Bunchan Kresna and the owner of the Bunchan Chur Construction Material Shop. She stated that she wanted to tour Australia but could not stay for long as she had a lot of work to do in Cambodia. A document purporting to be signed by Mr Bunchan Kresna and dated 3 February, 1997 vouched that Ms Ngouv intended to visit Australia for a holiday. She was granted that visa (T documents, pages 50-52) and travelled to Australia and entered on 15 February, 1997.

Mr Ly and Ms Ngouv were introduced by mutual friends in 1998 in Australia. After approximately three months, they married on 10 November, 1998 and lived together for the next three years in a house that they bought together.

On 31 December, 1998, Ms Ngouv applied for a Subclass 820.821 (Partner) Visa (“Partner Visa”). While her application was being considered, she was granted a Bridging Visa Class A, which remained in force until her application was decided. Under that visa, she was not permitted to work as she had not previously been permitted to work under her tourist visa. There is no evidence that she sought permission to work. In a letter dated 15 October, 1999, the Department told Ms Ngouv that she had been granted a Bridging Visa Class C that did not authorise her to work.

Mr Ly and Ms Ngouv lodged undated applications to sponsor Lay Sieu Tai, who was born on 22 April, 1979, to come to Australia. They did so as his step father and mother respectively. On 10 April, 2000, Lay Sieu Tai lodged an application to visit Australia for tourism so that he could visit persons he described as his step father, Mr Ly, and mother, Ms Ngouv. On 4 April, 2001, Lay Sieu Tai applied once more to visit Australia for tourism. He said that he wanted to visit his mother, Ms Ngouv, who was very sick.

Ms Ngouv’s application was refused on 29 August, 2001 on the basis that she was not the holder of a substantive visa at the time that she lodged her application. Ms Ngouv sought review of that decision by the Migration Review Tribunal (“MRT”) but she left Australia on 1 January, 2002 before her appeal was heard. Mr Ly accompanied her on her return and remained in Cambodia for six months.

On 23 January, 2002, Ms Ngouv, applied for a Sub-class 309 (Spouse) (Provisional) Visa (“Spouse Visa”). She noted that her previous husband, Lay Thi An, had died in 1986 and that they had three children. Ms Ngouv said that her three children were Lay Sieu Tai, born on 22 April, 1979, Lay Sieu Kheang, born on 17 March, 1981 and Lay Sieu Eng, born on 5 January, 1983.

THE EVIDENCE

Applications by Ms Ngouv and her family for visas to enter Australia

Mr Ly

Mr Ly acknowledged that he had signed an application to sponsor his wife’s Spouse Visa and that he had included in that application two persons, Sieu Kheang Lay and Sieu Eng Lay, as her dependents. He said that the person who had assisted them to complete the forms had told them to leave it to him to handle it. Mr Ly said that he supplied him with all of the information and that the person told them what to do about the children. The person told them to put in either three or five of the children. When it was put to him that his wife did not have any children, Mr Ly replied that she was stupid and did not know what she was talking about. She just said what she was told to say. Later, he said that his wife had looked after all of the children since they were young. Her parents had died and they had asked her to look after them.

When asked whether he had married his wife so that she could stay in Australia and because her passport was about to expire, Mr Ly said that it was due to expire and he quickly lodged the application. When asked whether he had been paid to marry her, he replied that he did not like to do that. No-one contacted him and said that there was a woman who needed to marry.

Ms Ngouv

Ms Ngouv’s passport issued on 20 January, 1997, shows her name as Ngouv Chur as did her application for a Spouse Visa and her earlier application for a Partner Visa. Her name was also given as Ngor Choo, she said in an interview with Ms Ling Nouv and an interpreter at the Australian Embassy in Phnom Penh on 30 April, 2002 (“the interview”). On 31 May, 1995, a person named as Ngo Chou applied for a Subclass 214 (Special Assistance Category) Visa (“SAC Visa”). Her date of birth was shown as 7 January, 1954 and a dependent son, Lay Sieu Tai, was included. Her application was refused. In the interview, Ms Ngouv denied that she had applied for a SAC Visa but said in oral evidence at the hearing that she had done so.

The first visa for which she applied, she said at the interview, was in 1997. She denied that she owned a construction company and denied that she lived at the address shown in that application. Ms Ngouv told Ms Nouv:

“Somebody organised that application on my behalf. I can’t remember whom. I paid him US$7,000 to get a visitor visa. I didn’t plan to reside in Australia. I only married after meeting my sponsor.” (T documents, page 130)

Ms Ngouv acknowledged that all of the documentation in support of the visa application was fraudulent. The person to whom she gave the money just gave her the passport. She said in her evidence that she had no idea what was happening in the processing of the documentation. She did not understand how she should apply for a visa and paid somebody to do it for her. When she received her passport, she did not note that her name had an incorrect signature. She said that she was told that the passport was valid and used it. Her date of birth was incorrectly shown on the passport as 1 August, 1954. It is 1 July, 1954.

In her oral evidence, Ms Ngouv said that she did not deal directly with the person who lodged the application. The passport was delivered to her through a friend and she gave the money in return. She was not interviewed at the Embassy in relation to her application. When asked whether she would have told the Embassy that the documentation was false had she been interviewed, she replied that she did not know what was true and what was false; she cannot read documents. She just followed the instructions that she had been given. Ms Ngouv said that she did not find the payment of $US7,000 a strange thing to have to do as she had no relatives that could help her to obtain the documents. She did not think it a lot of money to pay as she felt that she would be able to locate relatives, travel and see the country and have a bit of fun. At the time, she did not think that what she had done was illegal but now does think that it was. She was sorry.

Ms Ngouv said in the interview that her son, Lay Sieu Tai, applied for a visa to visit Australia for tourism in 1997 and did so under another name, Pen Channy, whose date of birth was given as 3 March, 1968. When asked whether Lay Sieu Tai was her son or a third party included in her application, she replied that he was her “real son” (T documents, page 131). She said at the interview that she did not know about his application until she returned to Cambodia. He told her that he had missed her so much that he wanted to go to Australia as she did. His application shows that he described himself as the owner of a construction material shop and lodged documentation to support his claim. Ms Ngouv said that her son had followed her example and paid somebody to organise his documents.

In a written statement, Ms Ngouv said that her mother died when her youngest brother was only ten months old. Her mother told her to look after him as her own son and so she considered him to be her son. If it has been possible, she has always taken him with her. He calls her “mum” and the effect of her evidence was that she is the one who nurtured him and provides him with a home. The other children referred to in her applications are children of her elder brother. He gave them to her as adoptive children since they were young as they are sick if they are with their natural mother.

In her oral evidence, Ms Ngouv said that her husband had told her to fill out the form correctly. She had not written the information in the applications that she had previously lodged at the Embassy in Phnom Penh. When asked why she had included her brother, a niece and her nephew as her dependants in her application for a Partner Visa, Ms Ngouv said that, before her parents passed away, they asked her to look after all of the relatives and siblings. As it was her responsibility to care for them, she called them her own. She did not have any children of her own but these children could not be cared for by their own parents. When she escaped to a refugee camp in Indonesia, she took Lay Sieu Tai with her but, as the other two were too small, she returned them to their parents.

In her oral evidence, Ms Ngouv said that she was not aware that Lay Sieu Tai had lodged a further application for a tourist visa on 4 April, 2001. She could not recall if she had ever tried to sponsor anyone to come to Australia.

Ms Ngouv said that, in 1997, she had intended to come to Australia for six months. She had sold her take away business, which comprised a shop with eating facilities, as she was not there to look after it. Her older brother had his own business and her younger brother was studying.

Ms Ngouv’s family in Cambodia

Mr Ly said that he had investigated Ms Ngouv’s family while he was in Cambodia. She had an older brother and a younger brother and four nieces and one nephew. Those children, who are the children of her older brother, lived in Phnom Penh; sometimes with their parents and, when he and Ms Ngouv lived in that city, sometimes with them. They spent approximately two or three months there overall.

One nephew, Lay Sieu Tai, studied and this was the person, Mr Ly said, whom Ms Ngouv had described as her son. Her elder brother is the father of her four nieces and nephew. Mr Ly said that he had not known that Ms Ngouv described her younger brother as her son.

In the interview, Ms Ngouv specified that she had two sons, Lay Sieu Tai born on 22 April, 1979 and Lay Sieu Kheang born on 17 March, 1981 and a daughter, Lay Sieu Eng born on 1 May, 1983. She said that the children shared the same father and that she was prepared to undergo a DNA test to prove that they were the children. Ms Ngouv said that her children had not used other identities but then acknowledged that Lay Sieu Tai had paid someone to organise his documents and had lodged an application for a visa under another name.

Mr Ly’s family in Australia

In his evidence, Mr Ly said that he had no family in Australia. In her application for a Spouse Visa, Ms Ngouv stated that Mr Ly’s three children live in Australia (T documents, page 107). She named them as Ly John Bun Hong, born on 1 April, 1982, Ly Marie Poch Lang Ly, born on 25 October, 1983 and Ly Pech Chou Ly, born on 25 October, 1983.

Mr Ly’s medical condition

A report from Dr AJ Goodwin of the Cremorne Surgery dated 9 May, 1999 noted that Mr Ly had received lower back and right groin injuries in a workplace accident in July, 1996. Investigation and examination by numerous specialists indicated that Mr Ly had a degree of degenerative change in his lumbosacral spine, which had apparently been aggravated by the accident, and a small right inguinal hernia, which was also apparently associated with the accident. Psychological and cultural factors significantly contributed to Mr Ly’s expression of pain. Dr Goodwin reported that Mr Ly underwent intensive physical and psychological rehabilitation during the next eighteen months. He appeared to be receiving benefit from the psychologist intervention but did not continue with it despite medical advice to do so. Mr Ly did not continue with the physical conditioning programme despite being recommended to do so. He had required regular analgesia over a prolonged period to palliate his pain. In the previous twelve months, he had taken two to three Panadeine Forte tablets each day.

Dr Gabriel Lee of the Department of Neurosurgery at the Royal Adelaide Hospital (“RAH”) described Mr Ly’s being admitted to the Neurosurgical Unit on 16 March, 2000 when various investigations were carried out of his complex dural fistual. Venous intracranial hypertension was identified and this accounted for his ocular symptoms. Mr Ly’s case was discussed in a group meeting of several neurosurgeons, Dr Lee said, and it was felt that the risk of haemorrhage was up to 30%. There were extensive discussions with Mr Ly and his wife during his admission but Mr Ly asked that he be discharged as he felt that he could not face the operation. Dr Lee continued in his report:

“Since his discharge, I have spoken to Mr. Ly on a number of occasions. Unfortunately he has not attended an appointment to see me in neurosurgical outpatients. When I rang him at home last week, his wife told me that he thought that the appointment had been made for this coming week. In any case Mr Ly is away overseas according to his wife and she is uncertain when he will get back. Certainly, I understand that he will not be in time for the appointment even if it had indeed been this Friday.
…
As it stands currently, I am not able to convince them of the potential benefits of surgery. My plans to contact them by telephone and a request to see them in outpatients has not been particularly successful.
I have advised Mrs. Ly on my last telephone call to convey the message for Mr. Ly to contact me as soon as he gets back in town from his overseas trip.”

In a later letter dated 23 June, 2000, Dr Lee wrote to Dr Vung:

“As you know from our phone conversation I have managed to finally get in contact with Mr Ly at home. Once again, I reiterated the high risk of venoushaemorrhage as well as visual deterioration. In actual fact, Mrs Ly seems to acknowledge that there has been quite a quick deterioration of her husband’s vision. Despite my advice Mrs Ly is insistent that she wants to find a medication which will cure her husband’s problem. I emphasised to her that this is not possible. They do not want surgery.
Unfortunately, I feel I have exhausted all that I can offer to the patient. I have contacted them on multiple occasions. I have made appointments for them in outpatients which they have not attended. I know from our phone conversation that you have had similar problems as well.
The only thing I can therefore suggest is that perhaps whenever he visits your clinic, you may hopefully have the opportunity to remind him of this current problem.”

Dr Sung-Phu Lam wrote a report on 30 November, 2001 in which he said:

“Mr Ly is suffering from a severe condition – complex dura fistula involving the superior sagital sinus causing loss of vision of the right eye, chronic headache and depression.
There was a clinical meeting in the presence of several neurosurgeons. The conclusion was that Mr. Ly has high risk of haemorrhage up to 30% if his condition not operated in the nearest future.

Mr. Ly could not go through with the operation at this stage as the post-operative rehabilitation time is too long and he would require constant care and attention provided by his wife.
At this stage, he is uncertained and can not decide on the date of the operation because he is waiting until his wife is to be granted permanent residence status in Australia.
As a result of the medical condition and the application of his wife to stay in Australia, Mr. Ly developes (sic) anxiety and depression.
I am concerned that if his wife have to depart from Australia, Mr. Ly will be unable to undergo the operation and his depression may deteriorate.
I would strongly support the presence of his wife whilst he is sick and when he requires the life saving operation.”

On 18 July, 2002, Mr Ly underwent a CT scan of the brain, which showed, among other matters, an appearance that his highly suspicious of arterious venous malformation. Further evaluation was recommended. On 23 July, 2002, Ms Soch of the Cambodian Community Welfare Centre wrote to the Neurological Department at the Monash Medical Centre asking that Mr Ly be seen as an outpatient at no cost as he was not in receipt of income from any source. He did have a Centrelink health card. An appointment was made for him on 9 October, 2002.

On 25 November, 2002, Mr Ly underwent an angiogram but the results are not available. Dr Ley Chea, a general practitioner, certified on 29 November, 2002 that Mr Ly is suffering from a brain tumour and was currently under a specialist’s investigations.

Mr Ly acknowledged that the medical practitioners told him that he required surgery and that it was very important that he underwent it. He did not have the surgery at that time as his wife’s application for a visa had been refused at that time. Although his wife stayed with him until 2002, he was under intense pressure at the time. Mr Ly said that he is currently on the waiting list for surgery and he does not know how long the convalescent period will be. He has been told that one possible outcome of the surgery is that he will be left disabled. It is dangerous to operate on the brain.

Mr Ly said that his condition means that he has difficulty in concentrating and cannot see very well. Sometimes, he gets headaches and, when his wife is not with him, he suffers from despair and has no hope at all. In addition to Panadeine Forte, Mr Ly said that he takes medication for high blood pressure. He said that he had been to many chemists in Cambodia and he could not obtain that medication.

Ms Ngouv

Ms Ngouv said that she was aware of the seriousness of her husband’s condition and was aware of it because she had lived with him. Every three or four days, he would suffer and she had to calm him down. She cannot think of anything but her husband and cannot turn her mind to anything else, she said.

Mr Ly and Ms Ngouv life together in Australia and in Cambodia

Mr Ly

Mr Ly said that he decided to marry again because he needed a companion. When he met Ms Ngouv, she had been in Australia for the previous eight or nine months and living with her cousin. He did not know why she had come to Australia and he does not like to ask about people’s pasts, he added. He did not know anything of his wife’s occupation in Cambodia before she came to Australia. She did not tell him if she had any children and he said that he did not ask her whether she did. Mr Ly said that he did ask Ms Ngouv whether she was married but he did not believe her when she said that she was not married. She told him that she was divorced. He married her because her passport was about to expire. They then went to see a solicitor in Adelaide and told her about the problems of the passport. Their solicitor explained the difficulties of obtaining a visa for Ms Ngouv.

The three years that he spent living with Ms Ngouv as his wife were “pretty good”.. They bought a house together in Adelaide. She was a companion to him and always provided support to him. Ms Ngouv understands him and he has feelings for her. In response to a question whether he loved her, Mr Ly said that he was very fond of her. It equated with love and “you could possibly say” that was the reason he sponsored her application. When he was ill, she looked after him and helped him to manage his illness. She was a great help to him, he said. Ms Ngouv performed domestic duties and, when he was sick, she stood beside him. She did not have to help him with his personal toiletry. His condition means that he gets angry and uncommunicative sometimes and his wife calmed him down. She did that by asking him not to get too angry because they needed money to buy new things. He broke things when he was angry.

In Australia, Mr Ly said that his wife worked making noodles. She was employed by somebody else. When asked whether he was aware that there was no provision for her to work in Australia, he replied that he did not know. She was injured at work when she cut her hand and fell to the ground injuring her back. Ms Ngouv claimed worker’s compensation. For the two year period before she left Australia on 1 January, 2002, his wife received compensation payments. Mr Ly said that, when his wife was injured, he was able to walk and move and forced himself to do whatever he had to do to look after himself. Ms Ngouv did not undertake the domestic duties with her sore back and the house was a complete mess. He would sweep the floors and do the shopping but that was all. They relied on take away food.

In the interview, Ms Ngouv told Ms Nouv that she had not worked while in Australia but had lived on $US10,000 that she had taken from Cambodia to Australia together with Mr Ly’s compensation moneys. She had been able to save that money by selling coffee and rice and planned to sell coffee and rice in Australia.

When his wife returned to Cambodia, Mr Ly said, they sold the house and he went with her. They did so as their lawyer had advised them to do so in order to apply again for a visa from Cambodia. For the first two or three months, they lived in the city but then he went with his wife to live in her village in the country. Neither of them worked but lived on money he had taken from Australia. Mr Ly said that he remained in Cambodia with his wife for a period of only six months as the medication he had been given on his doctor’s prescription only lasted that length of time. He had to return to Australia to apply for more medication. If he had not had a medical condition, he said that he did not know whether he would have travelled to Cambodia with his wife.

Mr Ly would like his wife to live in Australia as he believes that the medication he requires is not available in Cambodia. At first, Mr Ly agreed that he could obtain a prescription for medication for a six month period and return to Cambodia to live but then said that he had done so and that he had been refused the medication. The medication is Endone. He then said that he had not been prescribed Endone for any period at all let alone six months. The medication that he now takes is Panadeine Forte and he cannot get that in Cambodia. Mr Ly said that he consulted a medical practitioner while he was in Cambodia because he was suffering from blurred vision. He told him about his condition and the medical practitioner prescribed some medication for him but it was not suitable as it did not help him. Mr Ly said that he did not go back to that medical practitioner or any other while he was in Cambodia.

Mr Ly said that he did not know that some of the documents that his wife gave to the Embassy were false and only discovered that when he was told by the Embassy that it was so. When asked whether he knew of it before that time, he replied, “I don’t know”.. He said that he did not know why she provided false documents. Mr Ly said that the six months that he spent with her in Cambodia gave him the opportunity to have a better understanding of his wife. He used his time to investigate her background. She is from a rural village; she is backward and a “bit dumb but honest” and would not have the capacity to make false documents to give to the Australian Government. The allegation of fraud made against her has been fabricated by somebody else. His wife paid $US7,000 to someone and assumed that nothing happened. She had saved that money from a small take away food shop she operated and had also received some from friends. Before she left Cambodia, she sold the business at some time in 1997. Mr Ly said that he begged leniency for his wife. Apart from his concerns as her husband, he is, since she was robbed of her motorcycle, concerned for her safety.

Ms Ngouv

Ms Ngouv said that she first met Mr Ly in September, 1997 when they were introduced and she had been in Australia for five or six months. They both felt that they had no relatives really and they started to like each other.

Ms Ngouv’s life in Cambodia since Mr Ly’s return to Australia

Mr Ly said that Ms Ngouv works on a farm growing and picking fruit.

Mr Ly’s life in Australia since his return from Cambodia

On his return from Cambodia, Mr Ly said that he lived with a friend in Melbourne and continues to do so. They share the rent and expenses of the household. He did not return to live in Adelaide as he did not want to reflect on the past. If Ms Ngouv were permitted to return to Australia, Mr Ly said that he would find alternative accommodation and, if he could afford it, would buy another house.

Ms Ngouv said that she had been robbed of her motor bike in Cambodia but had not gone to the police as she feared repercussions.

If Ms Ngouv is not permitted to come to Australia, Mr Ly said, he would have to find another place to live as his friend has to live on her own sometime as she has her own life. He will be unhappy because Ms Ngouv is his wife and because she has been rejected. He would never think about living in Cambodia, he said. Cambodia is a very dirty place, Mr Ly said, and a country in confusion. He has already been there for six months. Cambodia is a land that has treated him very badly as he has been through the Pol Pot regime. Even if his operation is successful, he will still want his wife to live with him in Australia. He does not know what is so good about Australia but he knows that he needs a companion beside him.

Referees

Mr Ky Suy Hy made a statutory declaration in which he said that he and his wife had been good friends with Ms Ngouv before the Pol Pot Regime, which began in 1975, but were subsequently separated during the regime.. They own and operate a business and were contacted by Ms Ngouv with an invitation to attend her wedding in 1998. Ever since they have known her, they have found her to be pleasant.

Mr Ren Fan Yao said that he had married Ms Ngouv’s friend, Mrs Guech Cheng Ly, and had known Ms Ngouv since then. Ms Ngouv would telephone them for a chat. They were invited to her wedding. Although they could not attend the wedding, they did visit her in South Australia in 1999. She was looking after her husband, who was suffering from a brain tumour. In November, 2001, Ms Ngouv and Mr Ly visited them in Melbourne and stayed at their home. They shared a room, did everything together and were very much concerned for each other. Mr Ly is currently sharing a house with Mr Yao and his wife and he is on a waiting list for an operation to remove his brain tumour. Mr Yao believed that the marriage between Ms Ngouv and Mr Ly is genuine and ongoing.

LEGISLATIVE BACKGROUND

Framework of Act

Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“the Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Subclass 309 Spouse (Provisional) Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 as specified by cl. 309.225 of Part 309 of Schedule 2 of the Regulations.

At the time that the delegate’s decision was made and of this review, criterion 4001 provided that:

“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass 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.”

Section 501(2) of the Act provides that:

“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)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, in so far as it is relevant, provides that:

“For the purposes of this section, a person does not pass the character test if:
(a)…;
(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 in 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; or
(d)…

Otherwise, the person passes the character test.”

CONSIDERATION

The Direction – general considerations

Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No.21 (“the Direction”).

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”

The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”

The Direction - application of the character test

The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant. Of them, the Minister stated in the Direction:

“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”

In considering whether a person is not of good character when measured against s. 501(6)(c)(i), the Minister directs decision-makers to take the following into consideration:

“(a) the nature, severity and frequency of the offence/s;
(b)how long ago the offence/s were committed;
(c)the non-citizen’s record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt for the law; and

(d) any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.” (paragraph 1.8)

With regard to s. 501(6)(c)(ii), the Minister directed, in so far as it is relevant to the circumstances of Ms Ngouv’s case:

“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.

(b)     whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)     whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)     whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10     In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)     resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):

whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or

(b) resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”

The authorities regarding “good character”

In this case, the focus is upon any criminal conduct in which Ms Ngouv’s may have engaged as set out in s. 501(6)(c)(i) and upon her past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:

“`Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)

After considering that structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:

“These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)

A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:

“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.” (page 781)

What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:

“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)

Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:

“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the Tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)

Does Ms Ngouv pass the character test?

Ms Soch conceded that Ms Ngouv had done the wrong thing by, among other matters, carrying a false passport when she travelled to Australia in 1997. The real person who should be punished, though, was the person “running the racket”.. Ms Ngouv had lost a lifetime of savings and was the victim of a bigger scam. There is a need for the Australian government to treat the problem at its roots. Ms Ngouv had chosen not to continue with her application at the MRT as she preferred to return to Cambodia and to do the right thing. In naming her niece, nephew and younger brother as her children, she was not attempting to mislead but saying what her heart told her to say.

On the basis of the evidence that has been given in this case, I am satisfied that Ms Ngouv travelled to Australia on a passport and with a Short Stay Visitor Visa to enter Australia that had been obtained by a person to whom she had paid $US7,000. The passport was false and the information on which the visa was obtained was false in some respects. In particular, it was false in so far as it showed her to be a woman married to Bunchan Kresna and the operator of the Bunchan Chur Construction Material Shop. It was also false, on Ms Ngouv’s evidence in so far as the application stated that Ms Ngouv had not applied for entry to Australia in the previous five years. She had applied for entry in 1995.

I accept that Ms Ngouv and Mr Ly entered a marriage. It might not have been a marriage based on notions of romantic love but it seems to have been based on the needs as each perceived them to be. From Mr Ly’s point of view, he saw Mrs Ngouv as a person who would care for him although, on his evidence, I find that her ability to undertake domestic duties ended when she caught her hand in a mincer or she injured her back or both. On the basis of the evidence of both Ms Ngouv and Mr Ly, I find that she was able to care for him by being a calming influence when he felt anger. From her point of view, it is more difficult to find her basis for entering the marriage. She said that she felt pity for him and, at the hearing, that she started to have feelings for him. There can be no doubt that it assisted her efforts to remain in Australia if she were to marry but that does not of itself mean that she did not enter a genuine marriage even if she was mindful of that fact. They subsequently bought a house together and she remained with him for more than three years. Certainly, during the whole of that time, it has been essential that she maintain her marriage with Mr Ly for her applications to remain in, or return to, Australia have been dependent upon her marriage. He followed her to Cambodia when she returned in January, 2002 and did not allow her to travel on her own. Having regard to these matters and to the evidence of Ms Ngouv’s friends, I have decided that Mr Ly entered their marriage with the intention of its being a genuine union between them and not simply as a contrivance for enabling her to prolong her stay in Australia. I find, on balance, that Ms Ngouv entered the marriage with the intention of remaining with Mr Ly but just how long she intended to stay with him, I cannot ascertain. That seems a harsh view to reach but my uncertainty stems from my findings of the history of her misstatements and her actions directed to looking after her own interests.

Ms Ngouv was told that she could not work in Australia unless, as she was told in a letter from the Department acknowledging her application of 31 December, 1998, she sought permission to do so. There is no evidence that she sought that permission. She did not have permission to work under her Short Stay Visa and yet I find that she did work making noodles. She suffered a workplace injury and received worker’s compensation.

After her marriage, I find that Ms Ngouv lodged an application for a Spouse Visa. In that visa, she incorrectly stated that she had three children when, I find, she has borne no children and adopted no children. She explained at the hearing why she had said this. While I can accept that she might regard the children as her own children for all practical purposes, it is clear from the order of the questions that the application form is asking her to specify the number of children that she has had with her previous partner. At the interview, she was also clearly asked if Lay Sieu Tai was her “real son”.. There can be only one meaning of this and that is whether she had borne him or adopted him formally. I find that she has not although I do find that she regards herself as being in the place of a parent to him.

In relation to her niece and nephew, I do not consider that she regards them as her own. These are the children whom she returned to their parents when she left Cambodia and found herself in a refugee camp in Indonesia because they were too small. They are the children whom she left for almost five years in Cambodia while she travelled to, and remained in, Australia. They are the children who stayed with her and Mr Ly on occasion when they lived in Cambodia for six months. They are the children whom Ms Ngouv said become sick if they are left with their natural mother and yet who have presumably spent substantial periods of time with their parents and not with Ms Ngouv. I do not accept that she regarded them as her own children although I do accept that she stood as a parent to Lay Sieu Tai for she had cared for him since he was ten months old and he accompanied her everywhere except on her trip to Australia. Even then, he tried to come in the same way as she by paying for false papers and so the bond would appear to be close.

In summary, I find that Ms Ngouv has not engaged simply in a single misstatement that is repeated consistently through her actions and her dealings with the Department but in series of misstatements that bring her into contravention of s. 234(1) of the Act. That section provides that:

“A person shall not, in connexion with … an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a)…
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.”.

She has broken Australia’s migration laws by making misstatements about her previous application and about her children and by her actions in working. She has persisted in her misstatements about the children. In doing so, she has shown that she will do whatever suits her own interests and the interests of those for whom she feels some responsibility. She will do so while disregarding the laws of the community whom she would seek to join. It is not an explanation in the circumstances of this case to say that another person completed the forms. She signed them and must take responsibility for them for it is clear from the contents of the interview that she was prepared to support the misstatements in them.

Having regard to these matters and the evidence as a whole, I am satisfied that Ms Ngouv has engaged in the course of conduct I have set out above in order to improve her life. No criticism is to be made of a person who strives to improve his or her lot but, in doing so, she has shown a disposition to disregard the laws of the country where she seeks to live. Although she expresses regret that she has not told the truth in her dealings, it is far too early to say that she has changed her ways.

I am satisfied that Ms Ngouv has some regard for Mr Ly and for those for whom she feels some responsibility in Cambodia but those traits do not outweigh the continuing disregard that she has shown for Australia’s migration laws such disregard is a serious matter for it jeopardises the fair and consistent administration of Australia’s migration laws. Therefore, I find that she is a person not of good character. She does not pass the character test.

The Direction – exercise of the discretion

Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed that they:

“… 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.” (Direction, paragraph 2.2)

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 relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Ms Ngouv’s conduct; the likelihood that she will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Ms Ngouv’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…” (Direction, paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Ms Ngouv as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that her conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Ms Ngouv’s case, it is relevant to have regard to:

“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, paragraph 2.10(c))

General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).

Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:

“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)

The third primary consideration relates to the best interests of a child. The matters to which the Minister has directed a decision-maker’s attention in considering the best interests of the child are:

“(a)   the nature of the relationship between the child and the non-citizen;
(b)     the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)     the age of the child;
(d)     whether the child is an Australian citizen or permanent resident;
(e)     the likely effect that any separation from the non-citizen would have on the child;
(f)      the impact of the non-citizen’s prior conduct on the child;
(g)     the time (if any) that the child has spent in Australia;
(h)     the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)      any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)      any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.” (Direction, paragraph 2.16)

The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:

“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)

In looking at the best interests of the child, regard must also be had to the High Court’s judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 (Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child (“the Convention”) in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:

“Article 3
1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.     …

Article 9

1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.…
4.…
Article 18
1.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2.For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …
3.…”

The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:

“No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as ‘a primary consideration’.. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.” (page 365)

Before returning to that, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:

“(a)   the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
(b)     …
(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 dependant 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)     …
(f)     …
(g)     …
(h)     any evidence of rehabilitation and any recent good conduct;
(i)     whether the application is for a temporary visa or permanent visa;
(j)     the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)…” (Direction, paragraph, 2.17)

Should Ms Ngouv not be refused a visa on the basis of her not passing the character test?

Ms Ngouv’s misstatements and actions in working have not been consistent with the public good in so far as the administration of its immigration laws are concerned. Her conduct has shown a continuing disregard of those laws and must be viewed seriously. The risk of her repeating her conduct remains high in view of the pattern of her past actions and statements. Whether or not refusal of a visa to her would discourage others is not a matter on which I feel able to make a finding as I have no basis on which I am able to find, one way or the other, the extent to which the refusal would become known. It is only if it were to become known could it become a form of deterrent.

In the circumstances, I have reached the conclusion that, in the absence of any countervailing considerations to which I will come, the Australian community would expect that Ms Ngouv not be permitted to come to Australia. It may be that its expectation would change at a later time as Ms Ngouv shows that she is prepared to abide by the law but that would be sometime in the future given her behaviour to date.

As I have already found, Mr Ly and Ms Ngouv have married and have built a life together. Mr Ly feels that he needs Ms Ngouv. He feels that she will care for him in his sickness. The extent to which she will do so must be a matter of conjecture. On the basis of the evidence of both Mr Ly and Ms Ngouv, I find that Ms Ngouv has been able to calm him when he becomes angry. As for physical assistance, it seems that she has not been of great assistance since she suffered her injury at work. Their evidence regarding the injury varied a little and I am uncertain as to whether it was an injury to her hand or her back or to both. I find on the basis of Mr Ly’s evidence that she did not cook for him or clean the house after her injury.

This is a difficult case. Ms Ngouv has not shown herself to be a person who will abide by Australia’s laws and yet concern for Mr Ly, who presents as a person who is alone in Australia because his children are estranged from him, supports a finding that she be permitted to come. I accept that Mr Ly does not wish to return to Cambodia or that it is in his best interests to do so. He did not know at the time that he married Ms Ngouv that he suffered from venous intracranial hypertension but he did know that he suffered from a degree of degenerative change in his lumbosacral spine, which had apparently been aggravated by the accident, and a small right inguinal hernia, which was also apparently associated with the accident. He had been prescribed Panadeine Forte or Endone for those conditions. Even though I do not accept his evidence that he cannot get medication in the nature of Panadeine Forte or Endone in Cambodia, he has been in Australia since 1982 and not only is Australia his home but Cambodia is a place of difficult memories for him. It is not in his best interests to live in Cambodia.

I find that he became aware that he suffered venous intracranial hypertension at some time in the first half of 2000. Mr Ly wants Ms Ngouv to return to Australia before he has an operation for that condition. His condition is of deep concern and one can understand his wishing to have a loved one by his side. A difficulty that I have in this case, though, is that Dr Lee was persistent in his efforts to try to get Mr Ly to have an operation for it in 2000 at a time when Ms Ngouv lived with him in Australia and at a time when she could have helped him. He spoke to Mr Ly on a number of occasions and, even when he was unsuccessful in his attempt to persuade him to have the operation, his concern was so great that he telephoned Mr Ly until he was able to speak to him again. This was despite Mr Ly’s not having kept his appointments at the RAH. Three years later, Mr Ly has still not had the operation. He is now on a waiting list to have it.

It may be that Mr Ly has now come around to the idea of having the operation but it is open to speculate why he did not have it in the eighteen months following the diagnosis of his condition in or about April, 2000. Mr Ly and Ms Ngouv did not leave Australia for Cambodia until January, 2002 when she decided to abandon her MRT application and lodge a fresh application in Cambodia. Dr Lee referred to Ms Ngouv’s insistence that the condition could be treated with medication. Was it that and perhaps a concurrent concern about an operation or was it a thought that, if Mr Ly needed care, it would aid her visa application?

While it may be seen as hard-hearted, I do not consider that Mr Ly’s need for Ms Ngouv to be by his side outweighs the concerns I have expressed in the context of the protection of the Australian community and its expectations. On Mr Ly’s own evidence, she was only able to provide limited support to him in view of her own injury. That is important but I am considering this issue in the context of a Spouse visa that would generally entitle Ms Ngouv to remain in Australia indefinitely. It is, in my view, too early to find that Ms Ngouv would stay with Mr Ly to care for him regardless of whether she thought that some other course of action were in her own interests. The reasons I have given as to why she is a person who is not of good character cause me to have concern that she would put her own interests ahead of Mr Ly’s. If I were considering the character test in the context of an application for a visa enabling her to nurse Mr Ly, the possible benefit to Mr Ly would outweigh my concerns regarding the protection of the Australian community and its expectations. As it is, I am considering a visa enabling her to stay indefinitely and I consider that the balance falls the other way until she has shown that she can put the rules of others above her own interests for a longer period. I have concluded that I should not exercise the discretion in favour of Ms Ngouv.

For the reasons I have given, I affirm the decision of a delegate of the respondent dated 19 June, 2002.

I certify that the ninety-two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie

Signed: ................................................................
P. Paczkowski Associate

Date/s of Hearing  17 July, 2003
Date of Decision  13 October, 2003
For the Applicant  Ms B. Soch, Social Worker,
Cambodian Community Welfare Centre

Solicitor for the Respondent Ms J. Greaves,
Blake Dawson Waldron

[2003] AATA 1033

13 October 2003