Ly and Minister for Immigration Multicultural and Indigenous Affairs
[2002] AATA 1235
•29 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1235
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/234
GENERAL ADMINISTRATIVE DIVISION )
Re Samnang Ly
Applicant
And Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President
Date29 November 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Lang Phor passes the character test pursuant to s 501(6) of the Migration Act 1958.
..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa application – subclass 309 spouse (provisional) visa – character test – examination of the Visa Applicant's past conduct and immigration misconduct – examination of the Visa Applicant's family history and relationship with the Applicant – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the hardship to the Applicant with the expectations of the Australian community – held that the Visa Applicant passes the character test – decision under review set aside with a direction that the Visa Applicant passes the character test pursuant to section 501(6) Migration Act 1958.
Migration Act 1958 ss 499(1) (2A), 501, 501(1), 501(6), 501(6)(c)(ii)
Marriage Act 1961 s 23B
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Gonzales and Minister for Immigration, Multicultural and Indigenous Affairs [2000] AATA 895
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
REASONS FOR DECISION
29 December 2002 Mr RP Handley, Deputy President
This is an application by Samnang Ly ("the Applicant") for a review of a decision of the delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 21 January 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Lang Phor ("the Visa Applicant").
At the hearing, the Applicant was represented by Kerry Murphy, Solicitor, of Craddock Murray Newman, Solicitors, and the Respondent was represented by Edward Palmisano, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. Oral evidence was given in person by the Applicant and his father, Ly Seng Song, and by conference telephone by the Visa Applicant.
BACKGROUNDThe Applicant, Mr Ly, was born in Cambodia on 12 January 1978 and is aged 24. Mr Ly migrated to Australia with his father arriving on 25 February 1994 (T p124), and became an Australian citizen on 30 March 2000 (T p70). The Visa Applicant, Lang Phor, was born in Cambodia on the 27 May 1980 and is aged 22. Ms Phor is a citizen of Cambodia, living in Cambodia.
In January 2000, Mr Ly's "aunty" and Ms Phor's mother arranged for them to communicate with a view to them possibly marrying. Between February 2000 and February 2001, Mr Ly and Ms Phor communicated with each other. In February 2001, Mr Ly sought the permission of Ms Phor's parents to marry her. On the 11 May 2001, he went to Cambodia to finalise plans for their wedding (T p125) and on 12 May 2001 Mr Ly met Ms Phor for the first time since his leaving Cambodia. On 28 May 2001, Mr Ly and Ms Phor were married in Phnom Penh. On 7 June 2001, Mr Ly returned to Australia.
On 2 July 2001, Ms Phor lodged an application for a subclass 309 spouse (provisional) visa. On 5 December 2001, she was interviewed by a migration officer at the Australian Embassy in Phnom Penh. On 21 January 2002, a delegate of the Respondent decided to refuse the grant of a visa to Ms Phor on the ground that she was not of good character because of her past and present general conduct. In particular, the delegate found Ms Phor had made false and misleading statements in relation to her visa application and had lodged false documents in support of her application. On 18 February 2002, Mr Ly lodged an application for a review of this decision with the Tribunal.
RELEVANT LAW AND POLICYUnder s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…
Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Phor is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 spouse (provisional) visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Samnang Ly (the Applicant)Mr Ly confirmed that his parents are Ly Song Seng and Vouch Hong (deceased). Mr Ly said he came to Australia with his father in 1994 at the age of 16. While he does not have any full brother or sisters, he does have a number of half-brothers and half-sisters as a result of his father's relationship with Ut Kim Lorn and Tea Vouch Hong, who are also both deceased. Mr Ly acknowledged that he has four half-siblings from his father's relationship with Ut Kim Lorn, one of whom (Ly Keo) is missing and another of whom (Ly Keo Sun) was disowned by his father and of whose existence Mr Ly was unaware until after Ms Phor's interview at the Embassy in Phnom Penh on 5 December 2001.
Mr Ly confirmed that his half-sister Ly Seng Im has six children, one of whom is his wife, Ms Phor. Mr Ly acknowledged that he had lived in the same house as Ly Seng Im's family in Phnom Penh at the time his father was applying to migrate to Australia – from about 1989 to 1991, when he was aged between 9 and 11. Mr Ly said when he completed question 66 of the spouse visa application form, he thought the question required information about blood relatives. He also did not mention Ly Seng Im in his Statutory Declaration, undated in 2001 (T12), because he was worried that he was not permitted to marry her daughter. Ly Seng Im is now his only half-sibling living in Cambodia.
Mr Ly denied that Tea Vouch Hong was the same person as his mother, Vouch Hong. He knows that he and Ly Seng Im have different mothers because they have different coloured skin – while his skin colour is black, hers is white. Mr Ly does not know Tea Vouch Hong's date of birth or death.
Mr Ly said it was Ly Seng Im who organised his and Ms Phor's wedding. The wedding was held at a restaurant to which 300 guests were invited to by Ly Seng Im. Mr Ly's "uncle" Ly Chai Hout attended the wedding to represent Mr Ly's parents' generation. His uncle is not related to Mr Ly by blood – the title "uncle" is used as an indication of respect for the older generation. Mr Ly said that he and Ly Seng Im shared the cost of the reception.
Mr Ly said he started exchanging photographs with Ms Phor in January 2000. They first met again on 12 May 2001 in Cambodia. Mr Ly interpreted question 60 of the spouse visa application as asking when they first met after the relationship that lead to their marriage first commenced, which was on 12 May 2001. He decided to marry because he wanted to settle down. Mr Ly has worked as a baker at Malabar for the past month, earning approximately $500 gross per week. Previously, he worked as a spray painter. He shares a house with a friend.
Mr Ly said he completed his wife's spouse visa application form and sent it to her in Cambodia for lodging. Mr Ly obtained the details of his wife's family from her Family Book. He was not present when his wife was interviewed.
Mr Ly said he last visited his wife in Cambodia in March 2002. He stayed at his wife's family house and they went out together to restaurants and night clubs. She was working at the Intercontinental Hotel in Phnom Penh. His wife's family were all living in the house – her mother and father, brothers and sisters, one of whom, Phor Leng, who has two children – a boy and a girl, is now divorced, and one of whom has recently married. Mr Ly said he maintains contact with his wife by phoning her once a month and by exchanging letters. He has sent cash to her – in Australian dollars - via a friend who was going to Cambodia. He has also sent her a necklace and earings.
Mr Ly said if his wife is refused a visa, he would not return to live in Cambodia. There is no peace, no freedom and it is not safe there. He has a better future in Australia. He and his wife have discussed having children and he would want them to be brought up in Australia. He acknowledged that he had lived in Cambodia until the age of 16 and that he speaks Khmer and is familiar with Cambodian culture. He can return there as a tourist but does not want to live there.
Lang Phor (the Visa Applicant)Ms Phor confirmed that she was born on 27 May 1980 in Kompong Thom province in Cambodia. Her parents are Phor Hok and Ly Seng Im. Her grandfather is Ly Song Seng. Her grandmother, Hong, is deceased. Her grandmother is not the same person as Mr Ly's mother, Vouch Hong. Vouch Hong died during the Pol Pot regime. Ms Phor's grandmother died before that. Ms Phor's mother is Mr Ly's half-sister. Ms Phor is Mr Ly's half-niece, and he is her half-uncle. Ms Phor has two older brothers, two younger brothers and one older sister, Phor Leng. Her older brother, Phor Long, recently married. Phor Leng is now divorced. At the time Ms Phor lodged her spouse visa application, Phor Leng was still married and had her own Family Book. She was not, therefore, included in Ms Phor's Family Book and Ms Phor did not include her name in her spouse visa application as a sibling.
Ms Phor said her husband completed her spouse visa application although they went through the form together. There were some parts she did not understand. She thought the question which referred to being related by blood meant, for example, full brother or sister. Ms Phor said she enquired about her relationship to her husband from a Cambodian officer at the Australian Embassy in Phnom Penh. She was advised that the law did not permit an uncle and niece to marry. It was because of this that she described her husband as her second cousin (T p122) – she was scared that, otherwise, she would not be granted a visa.
Ms Phor acknowledged that her parents had made an application for a visitor visa in which her mother had included her Family Book which incorrectly stated Ms Phor's date of birth. After they realised this mistake, when a new Family Book was prepared, Ms Phor's correct date of birth was included. In the earlier Family Book, dating from 1995, Phor Radet's name had been included because she was living in the household at that time. Her name was not included in the later Family Book because she was no longer living in the household. Phor Radet is not related to Ms Phor's family by blood.
Ms Phor said she and her husband completed her spouse visa application in a hurry and she was confused about her husband's half-brothers and half-sisters. She did not think it necessary to include her mother as her husband's half-sister because her mother's name was already included in the application as her mother. She denied this was a deliberate attempt to mislead the Department. She also thought the question referring to being related by blood (question 66, T p41) meant that only full brothers or sisters need be included. Ms Phor thought the question about when she "first met" her husband related to when they met at the time their relationship commenced which lead to their marriage. Ms Phor acknowledged that she and her husband had lived in the same house as children but she could not remember for how long.
At the interview at the Embassy 5 December 2001, Ms Phor was frightened of telling the officer the true nature of her relationship with her husband because of the advice she had been given that she could not marry her uncle. So she said they were second cousins. She acknowledged that she was given an information sheet at the interview warning of the consequences of giving false and misleading information. Ms Phor said she decided to reveal the true nature of their relationship after her husband had spoken to a solicitor in Australia.
Ms Phor said their wedding was organised by her parents and her husband's "aunty" and "uncle". These titles are used as an indication of respect and they are not actually related to her husband. Ms Phor said she stopped work in November 2001 before her interview at the Embassy. She told her husband of this. For the previous year, she had been working at the Intercontinental Hotel in Phnom Penh.
Ms Phor said although her family is in Cambodia, she wants to be with her husband in Australia and care for his father who is very old. She and her husband also want their children to be brought up in Australia. She said she cannot live without her husband. Currently, they keep in touch by phone and letter.
Ly Song SengMr Ly is the Applicant's father. He shares a house at St Johns Park with another family. Mr Ly worked as a truck driver in Cambodia. He is now a pensioner.
Mr Ly said his first relationship was with Tea Vouch Hong with whom he had a daughter, Ly Seng Im. Tea Vouch Hong died in 1962. His second relationship was with Ut Kim Lorn with whom he had four children: Ly Mov Sim, Ly Eng, Ly Keo and Ly Keo Sun. Ly Keo has disappeared and his whereabouts are unknown, Ly Song Seng disowned Ly Keo Sun in 1975 and Ly Song Seng has not seen him since and is not aware of his whereabouts. Ut Kim Lorn sponsored Ly Song Seng to migrate to Australia. She died four or five years ago. Mr Ly's third relationship was with Vouch Hong with whom he had one child, Ly Samnang. Vouch Hong died in 1978 during the Pol Pot regime not long after Ly Samnang was born.
SUBMISSIONS
ApplicantMr Murphy said the Applicant concedes that Mr Ly and Ms Phor failed to reveal their true blood relationship. However, this was because of incorrect advice Ms Phor received from a Cambodian staff member at the Australian Embassy in Phnom Penh, two months after the visa application was lodged. She was advised that marriage between an uncle and niece was prohibited in Australia, advice which she had no reason to doubt. Ms Phor was desperate to join her husband and was frightened that if the Department learned of her blood relationship with her husband, she would be excluded under Australian law. She therefore said she and her husband were second cousins. Mr Murphy said the advice Ms Phor received was wrong. A marriage between uncle and niece is not prohibited by s 23B of the Marriage Act 1961. Ms Phor's interpreted question 66, which asked whether she was related to her husband by blood, as meaning full blood. Details of her mother were, in any event, included in the visa application in the section on her family members.
Mr Murphy said that the errors concerning the family unit had been explained by Ms Phor. The date of birth stated for her in the Family Book differed from that in the earlier Family Book because of an error by her mother in compiling the earlier book which was corrected in the later Book. Her sister Phor Leng's name was not included in her spouse visa application because at that time she was married and had her own separate Family Book. However, she is now divorced and has returned to live in the family unit. Phor Radet, who was included in the earlier Family Book, was not included in the later one because is not a blood relation and was no longer living in the family unit. Lastly, with regard to Mr Ly's family, the whereabouts of Ly Keo and Ly Keo Sun were unknown and the Applicant was not even aware of Ly Keo Sun's existence at the time of completing the application. Ms Phor's answer to question 60, as to when she "first met" her husband had been adequately explained by Ms Phor. She explained that she understood this phrase to mean the time at which the meeting which ultimately led to their marriage took place. This cultural misunderstanding was supported by the fact that Ms Phor answered question 61 by stating that the relationship commenced the next day.
Mr Murphy submitted that no immigration advantage resulted from these errors. They were not made to obtain "migration ends" (T p130). They were simply errors and Ms Phor should not be considered of bad character because of them. Mr Murphy referred the Tribunal to the decision of the Full Federal Court in Irving vMinister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, as to the meaning of good character.
Mr Murphy submitted that Ms Phor is of good character but, if the Tribunal were to find that she does not pass the character test, then it should exercise the discretion in s 501(1) in her favour. Referring to Direction No 21, he said the risk Ms Phor poses to the Australian community is so low as to be immeasurable. With regard to the expectations of the Australian community, he referred to the decision in ReLeha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 and Deputy President McMahon's recognition, at paragraph 34, of "a general expectation in the community that the Act would be administered fairly and humanely". In ReGonzales and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 895, at paragraph 62, Deputy President Hotop said that in addition to the seriousness of the visa applicant's immigration misconduct, other relevant considerations must be taken into account, including the fact that he is married to an Australian citizen living in Australia.
Here the Applicant is an Australian citizen who speaks good English and, with most of his family, is settled and living and working in Australia. The Visa Applicant's misconduct was of a relatively low level and was a consequence of her being given incorrect information. She also speaks good English and would have no difficulty obtaining employment. It is understandable that they should wish to live in Australia and raise their children here rather than in Cambodia which is recognised as one of the poorest countries in the world with a health and education system far inferior to that in Australia. Mr Murphy submitted that in these circumstances the Australian community would not expect the Applicant to leave Australia and live in Cambodia in order to be with his wife.
RespondentMr Palmisano referred the Tribunal to paragraph 1.9(b) of Direction No 21 in relation to the character test and whether the non-citizen has "provided a bogus document or made a false or misleading statement". The Respondent submits that Ms Phor made a number of false and misleading statements in her spouse visa application:
question 37 – incorrect information was given about Ms Phor's siblings Phor Radet and Phor Leng.
question 59 – incorrect information was given about Mr Ly's siblings – Ly Seng Im and Ly Keo Sun were not included.
question 60 – Ms Phor stated she and Mr Ly first met on 12 May 2001. This was incorrect. They lived in the same house from about 1989 to 1991.
question 67 – Ms Phor stated she was not related to Mr Ly by blood. This was incorrect.
The Respondent also submits that Ms Phor made false and misleading statements at her interview at the Australian Embassy on 5 December 2001:
she confirmed her visa application was true and correct.
while admitting that she and her husband were related, she said they were second cousins.
she did not reveal that Ly Song Seng was her grandfather or that her mother was her husband's half-sister.
when the interviewer put to her the true nature of the relationships, she continued to deny this.
she maintained that her husband only had two siblings: Ly Mov Sim and Ly Eng.
Mr Palmisano said Ms Phor made a deliberate attempt to conceal the true nature of the family relationship. He said she has blamed the allegedly wrong advice received at the Embassy and has not showed remorse. Also, there is no evidence of recent good conduct. In conclusion, she does not pass the character test.
With regard to the exercise of the s 501(1) discretion, first, as to the protection of the Australian community, Mr Palmisano submitted that Ms Phor's misconduct should be considered very serious, she has shown a disregard for Australian law and there is a real risk of repetition. The refusal of a visa would send a clear message to others in Cambodia. Secondly, as to the expectations of the Australian community, the community would expect that a person who has made false and misleading statements should not be permitted to enter Australia.
As to the other considerations to which decision-makers are referred by Direction No 21, Mr Palmisano submitted that Mr Ly had contributed to Mr Phor's misconduct by not declaring the true nature of their relationship and by making a misleading statement in a Statutory Declaration saying that all his siblings were in Australia. Thus, little weight should be given to potential hardship to Mr Ly. Moreover, he could return to Cambodia and live there with his wife who, in any event, has never been to Australia and has strong family ties in Cambodia. Mr Palmisano said the seriousness of Ms Phor's misconduct outweighs the other considerations and the s 501(1) discretion should not be exercised in her favour.
APPLICATION OF THE LAW AND FINDINGSAs stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Phor passes the "character test" having regard to her past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Goldie (supra) followed the Full Federal Court decision in Irving (supra) where, at 431-432, Lee J said
Unless the terms of the Act and regulations require some other meaning, 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….
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.In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Phor, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(b) which directs the decision-maker to consider "whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false and misleading statement".
In Ms Phor' case, the alleged misconduct is in relation to her spouse visa application and her statements at the interview at the Australian Embassy in Phnom Penh on 5 December 2001. The Applicant concedes that Ms Phor and Mr Ly failed to disclose their true blood relationship of half-niece and half-uncle. With regard to the spouse visa application, Ms Phor said she understood question 66 to be asking about full blood relationships, not half blood relationships.
Then, after lodging the visa application and before her interview at the Embassy, Ms Phor was advised by a Cambodian staff member at the Embassy that a marriage between uncle and niece was not permitted in Australian law. The Tribunal accepts Ms Phor's evidence that, as a result of her relationship to Mr Ly, she was frightened she would not be permitted to come to Australia to be with her husband. The consequence of this was when, at the interview, Ms Phor was asked whether she was related to her husband by blood, she answered "he is my second cousin" (T p123). Ms Phor did not discover that the advice she received was wrong until Mr Ly consulted a solicitor in Australia and he told them that the Marriage Act 1961 does not prohibit marriage between an uncle and niece.
With regard to other alleged false statements in the visa application, the Tribunal accepts that Ms Phor's date of birth is 27 May 1980 and that the date of birth 30 December 1981 recorded in the earlier Family Book (T p113) was as a result of a mistake by Ms Phor's mother which was corrected when a new Family Book was prepared. The Tribunal also accepts Ms Phor's explanation for not including her sister Phor Leng in the list of siblings in the visa application. Ms Phor said her sister was married at this time and had her own Family Book. Ms Phor therefore completed question 37 of the visa application (T p38) in line with her Family Book (T p66). With regard to Phor Radet, the Tribunal accepts Ms Phor's evidence that she is not a blood relation and was included in an earlier Family Book (T p109) because she was living with Ms Phor's family at the time that the earlier Family Book was completed.
The Tribunal accepts that Ly Keo and Ly Keo Sun, half-brothers of Mr Ly, were not included in the list of his siblings at question 59 of the visa application because at the time of completing the application neither Mr Ly nor Ms Phor were aware of their existence. They only became aware after this was queried by the interviewer at the Embassy as a result of which Mr Ly asked his father about this. The Tribunal also accepts Ms Phor's and Mr Ly's evidence that they interpreted question 60, as to when they first met, as being in regard to the commencement of their relationship which lead to their marriage.
The Tribunal agrees with Mr Murphy's submission that these other errors do not appear to advantage Ms Phor's application. With regard to other alleged false or misleading statements made by Ms Phor during the course of the interview on 5 December 2001, those statements were a repetition of the answers given in the visa application or were a direct consequence of the incorrect advice Ms Phor received from a Cambodian staff member at the Embassy.
In summary, Ms Phor agrees that she made a false and misleading statement about her blood relationship with Mr Ly but, in terms of paragraph 1.9 of Direction No 21, there was a countervailing factor, namely the incorrect advice received from an Embassy staff member. In the Tribunal's view, the evidence does not support a finding that Ms Phor's enduring moral qualities are so deficient that it is for the public good to refuse entry. Thus, because Ms Phor does not fail the character test, pursuant to s 501(6) she is taken to pass the character test.
The Tribunal notes that even if it were to find that Ms Phor does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No 21, in the Tribunal's opinion, neither the protection, nor the expectations of the Australian community require that Ms Phor be excluded from Australia. While Ms Phor's misconduct should be regarded as serious, it is at the low end of the spectrum in terms of degree of seriousness, and the countervailing factor – the incorrect advice, should also be taken into account. Moreover, the likelihood that such misconduct will be repeated is minimal.
The Tribunal recognises that the refusal of visa where a person has been guilty of misconduct will have a deterrent effect. Nevertheless, in the Tribunal's opinion, the Australian community would take a humane view of her situation and would not expect that a visa would be refused: Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34. As noted by Deputy President Hotop in Gonzales (supra), other relevant considerations must be taken into account in addition to the non-citizen's misconduct. The Tribunal considers that the Australian community would view Ms Phor's and Mr Ly's circumstances sympathetically given Mr Ly's situation in Australia: he is an Australian citizen who speaks good English, and who, with most of his family, is settled in Australia and is working. It is understandable that he would not wish to return to Cambodia which is one of the poorest and least developed countries in the world, with health and education systems that face many challenges (A3 to A4).
In terms of the other considerations to which the Tribunal is directed by Direction No 21, the Tribunal has no doubt that the marital relationship between Mr Ly and Ms Phor is a genuine one. My Ly was aware of his wife's false statement in relation to their blood relationship but, the Tribunal finds, was, like her, motivated by the incorrect advice given by a staff member at the Australian Embassy. The Tribunal has referred to the other relevant matters concerning Mr Ly's situation in Australia in paragraph 50 above.
A weighing up of the primary and other considerations leads the Tribunal to conclude that Ms Phor is not a risk to the Australian community, that the Australian community would view her situation humanely, and that the parties should be permitted to commence a normal marital relationship.
The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Ms Phor passes the character test pursuant to s 501(6) of the Act.
I certify that the preceding 53 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: .....................................................................................
AssociateDates of Hearing 18 November and 19 November 2002
Date of Decision 29 December 2002
Solicitor for the Applicant Mr K Murphy
Solicitor for the Respondent Mr E Palmisano
0
6
0