Ly and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 565

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 565

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/1003

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NGUON TIENG LY

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

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

Date28 May 2004

PlaceMelbourne

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration - spouse visa - character test - false and misleading information - exercise of discretion – best interests of child – compassionate claims of Australian spouse - decision under review set aside.

Migration Act 1958 – s501

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568

Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Ngor and Minister for Immigration and Multicultural Affairs [2000] AATA 353

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

REASONS FOR DECISION

28 May 2004 Mr S P Estcourt QC., (Deputy President)           

1.      In this case the Tribunal finds in favour of Mr Ly’s application to set aside the respodnent’s decision to refuse a visa to his wife, Sinath Pol, to allow her to come from Cambodia to join him and their 7-year-old daughter, Angela, in Australia.

2.      The reason for the decision is that although Ms Pol has failed to satisfy the Tribunal that she is of good character, the best interests of her daughter, Angela, and to a lesser extent the compassionate claims of Mr Ly justify an exercise of the Tribunal’s discretion to nonetheless grant the visa in Ms Pol’s favour.

3.      Ms Pol, who first came to Australia on a tourist visa in 1990, subsequently made an application for a protection visa, which was refused and later still made two applications for spouse visas, one in 1999 and the application presently under consideration in 2002.

4. The respondent contends that Ms Pol does not pass the “character test” posed by s501 of the Migration Act 1958 (“the Act”), because she gave false information in her visa applications and in hearings and interviews in connection with them, relating to her children and her de facto relationships, and her experiences and whereabouts and because between July 1997 after the refusal of her protection visa and December 1998 when she was granted a bridging visa, she was an illegal non-citizen in Australia.

5.      Before the Tribunal, Mr Fell, counsel for the respondent, accepted that there were explanations for some of the inconsistencies in the information provided by Ms Pol from time to time in and in support of her various visa applications, but he pressed the Tribunal for a finding of bad character on the basis of lies by the visa applicant in connection with her 1999 and her 2002 spouse visa applications.   In acceding to Mr Fell’s request, I do not overlook the circumstances of the illegal overstay, nor indeed the other inconsistencies in the information supplied by Ms Pol for which only partial explanations exist.

6.      Specifically, Ms Pol accepted that she lied in her 1999 spouse visa application when she stated that her two sons, whom she had given into the care of a party official during the turmoil of the civil war in Cambodia, were living with her sister and her aunt, when in truth they were missing and perhaps dead.

7.      Additionally in relation to the present spouse visa application Ms Pol accepted that she had lied when she provided the answer “No” to Q22 in the application form, which asked whether she had previously been married or in a de facto or interdependent relationship, when in truth she had been in at least four such relationships in Cambodia.

8. The provision of false and misleading information in connection with a visa application will almost invariably result in a finding by this Tribunal that the person concerned is not of good character for the purposes of the “character test” posed by s501 of the Act. To use the words often quoted in such cases, the observation of truth in dealing with officials in migration matters is of fundamental importance to the effectiveness of Australia’s migration system.

9.      This case is no exception and although Ms Pol has offered explanations for her dishonesty, and for her overstay, the Tribunal finds that she has not satisfied it that she passes the “character test”.

10.     That Ms Pol does not pass the “character test” does not mean that she cannot obtain the visa she seeks. Section 501 also permits the Tribunal to authorize the visa if, having regard to all of the circumstances of the case including a number of “primary” and “other consideration” set out in Ministerial Direction No. 21, the Tribunal is satisfied that it ought to exercise its discretion in her favour.

11.      The first of the primary considerations, namely the protection of the Australian community, involves an assessment of:

·     the seriousness and nature of the conduct;

·     the likelihood the conduct may be repeated;

·     the likelihood that the visa refusal would prevent like conduct by others.

12. Ministerial Direction No 21 makes it clear that the Australian Government regards serious offences against the Act as very serious, and the provision of false and misleading information in connection with a visa application constitutes a breach of s234 of the Act which is a serious offence against the Act.

13.     As to the likelihood that the conduct may be repeated, I note that the application is for a permanent visa, which if granted, would obviate the necessity for further dealings with migration officials.  I do note however the force of Mr Fell’s submission that were Ms Pol’s two sons who are missing to be located she may wish to sponsor them and one perhaps could not have confidence that she would not once again mislead in connection with such applications.

14.     As to the question of 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, others in Cambodia and in Australia might be more careful about the provision of only truthful and accurate information in and in connection with visa applications.

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

“In my opinion the only effective way of announcing loudly and clearly to prospective migrants from that country, [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.”

16.     As to the second of the primary considerations, namely the expectations of the Australian community, I also find myself in agreement with the views of Deputy President Wright in Chau (supra) at [25] namely:

“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.”

17.     However, the third of the primary considerations, namely the best interests of any child of the person under consideration, weighs very heavily in the balancing of all the considerations in this case.

18.     The review applicant, who is an Australian citizen, and the visa applicant have a daughter Angela, as I have already noted.  Angela was born in Australia on 31 December 1996 and is an Australian citizen.  She has been separated from her mother since August 2002 when the visa applicant was obliged to depart Australia.

19.     In his statement of evidence taken in by the Tribunal as Exhibit 3 the review applicant said in relation to Angela:

“It is very important for my wife to return back to Australia because I need her as well as my daughter Angela who needs her mother desperately.  I’m working full time-night shifts; no one can help to look after my daughter better than her own mother does.  No one does the cooking, cleaning, and other housework.  I cannot go out socializing with my friends anymore.  I have suffered enough of these; therefore, I really desperately need my wife back to be reunited with my daughter and me.  I know that my daughter really miss her mother so much, she said to me that she wants mother back.  It is very hard for me take care of Angela by myself, not when I am working full time, I have to take Angela to school, pick her up from school.  My daughter cannot do homework, because of sleeping in the car, I only have a couple hours sleep, I am tired and so stress out, and I really don’t know what to do next, or perhaps to make life easier for me I better off commit suicide, that probably resolve my problems.  I do not want be on unemployment benefit, because I have (been) working all my life.

I believe not just my daughter is suffering for not having her mother around, I myself (am) also suffering as well for not having my good wife with me.

It is not (an) option to take Angela back to Cambodia to live there.  This is because I’ve been there, it is not a good place for my daughter to grow up, especially lack of education (not the right place for my daughter to study), health care, clinics and hospitals, and most importantly is that she is my daughter and also an Australian citizen, why should I send my beloved child to live in Cambodia.  Even though, if she has to go back to live with her mother in Cambodia, what then (is) going to happen to me, I will be lonely, suffering even more.”

20.     In a statement of evidence from Ravuth Tep, a former social worker with the Khmer Community in Victoria, taken in as Exhibit 5, Ms Tep reported Angela’s statements about her situation as follows:

“Angela said she was born on 30^th December 1996.   She is now 7 years old and she told me that she is Mrs Sinath Pol’s daughter.   Angela also told me that she talks to her mum over the phone once a week.   In addition, she said she really miss(es) her mum, she is sad.   She also, if she has mum with her, she would have a good sleep, stay at home with her mum, watching TV, reading books.   She also said if she has mum around, she would not go with daddy to his work and sleep in his car at all.   She also said when sleeping (in) the car at daddy’s factory she is not scared but she feel(s) lonely during the night.   Also she said sometimes she cannot do her homework.

Finally, her last words are “I really miss my mum and I want her to come back.”

21.     In a report from a child psychologist Mr Edwin Kleynhans, dated 28 January 2004, taken in as Exhibit 4,  Mr Kleynhans diagnosed Angela as suffering from Separation Anxiety Disorder with moderate depression, as a result of being separated from her mother.   He stated:

“This young girl is at risk of developing problems at school and emotionally later on and needs to be reunited with her mother as soon as practical.   The longer the delay, the more complex her problems will become, as the situation will soon become unsustainable.”

22.     Angela’s situation is terrible.   The practice of sleeping in her father’s car at the factory where he works night shift is intolerable.   She is a little girl.   Clearly and undeniably she should not be deprived of the love and care of her mother.   Preferably she should have the love and care of both parents in the one place.

23.     Mr Fell in his closing submissions acknowledged that it is in Angela’s best interests to be with both parents however, the respondent contends that, “because of the young age of the visa applicant’s daughter, she could more easily adapt to Cambodian life.”

24.     In my view that submission overlooks the fact that Angela is an Australian citizen.   She should not lightly be deprived of the country of her citizenship, “and of its protection and support, socially, emotionally and medically and in the many other ways evoked by, but not confined to the broad concept of lifestyle” [Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, per Burchett J citing Gaudron J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 at 375].

25.     In respect of this primary consideration I direct myself in accordance with the observations of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568. In my judgment the best interests of Angela lie in her remaining in Australia to enjoy the benefits of her Australian citizenship in the company care of both her parents living together. In my judgment, the force of no other consideration or combination of considerations in this case outweighs of Angela’s best interests.

26.     Finally, whilst it is a consideration to which, generally speaking, less weight is normally accorded under Ministerial Direction No 21, the genuine marriage of the review applicant, an Australian citizen, his compassionate claims arising by virtue of his separation from his wife and the hardship he will continue to suffer if he is unable to live with the visa applicant in Australia are also taken into account.

27.     Whilst I have observed in other cases, it would be inconsistent with principle and precedent to allow sentiment to dictate the outcome of proceedings, there is clearly room for compassion in cases such as this.   (See for example, Ngor and Minister for Immigration and Multicultural Affairs [2000] AATA 353 at [37]). The Australian community would expect it and Ministerial Direction No 21 embraces it by according “primary consideration” status to the best interests of children in Angela’s position and by recognition of the compassionate claims of Australian spouses.

28. In my view this is a clear case for the exercise of the residual discretion under s501 of the Act in the visa applicant’s favour. Her migration misconduct, whilst serious, remains at the lower end of the range. It did not involve the provision of bogus documents or the fabrication of primary facts. Moreover, the best interests of Angela and to a lesser extent the compassionate claims of the review applicant are weighty counterbalancing considerations.

29.     It follows from all that I have said that the decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: KL Miller
 (Administrative Assistant)

Date/s of Hearing  25 May 2004
Date of Decision  28 May 2004
Counsel for the Applicant         Mr Ian Cunliffe
Solicitor for the Applicant          Norton White
Counsel for the Respondent     Mr Tony Fell
Solicitor for the Respondent     Australian Government Solicitor