Neak and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 817

DECISION AND REASONS FOR DECISION [2002] AATA 817

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1420

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KIMLY NEAK
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

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

Date18 September 2002
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for re-consideration with a direction that the visa application not be refused under s501 of the Migration Act 1956.
  (Sgd S P Estcourt QC)
  Deputy President
CATCHWORDS
Immigration - remaining relative visa - refusal of visa on character grounds - false and misleading conduct in dealings with immigration authorities - whether fails character test - Ministerial Direction No 21 - countervailing factors - seriousness and nature of conduct - degree of hardship to immediate family members - family - composition - decision to refuse set aside.
Migration Act 1956 – s501

Re Lachmaiya v Department of Immigration & Ethnic Affairs (1994) 19 AAR 115
Goldie v Minister for Immigration & Multicultural Affairs (14 September 1999) FCA 1277
Minister for Immigration & Ethnic Affairs v Baker (1997) 153 ALR 463

REASONS FOR DECISION

18 September 2002 Mr S P Estcourt QC., (Deputy President)

This is an application by Kimly Neak ("the review applicant") for the review of a decision of a delegate of the respondent refusing the grant of a Sub Class 115 Remaining Relative visa to the review applicant's sole surviving sister Suntary Kien ("the visa applicant") pursuant to s501 of the Migration Act 1956 ("the Act") on the basis that she failed to pass the character test on the ground of past general conduct.
Section 501 of the Act provides relevantly:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…
501(6) For the purposes of this section, the person does not pass the character test if:
…
(c) having regard to either of the following:
…
(ii) the person's past and general conduct;
the person is not of 'good character'."
The exercise of power under s501 of the Act involves, first a consideration of whether the visa applicant is of good character and second, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In considering whether a non-citizen is not of good character, decision-makers are required by Ministerial Direction No.21, made under s.499 of the Act to provide guidance in making decisions to refuse or cancel a visa under s501, to consider a number of matters which where relevant, would in the absence of any countervailing factors constitute a failure to pass the character test.
Ministerial Direction No.21 binds the Tribunal.
One of the matters which, if relevant, would in the absence of any countervailing factors, constitute a failure to pass the character test is:
"Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement."
If a person fails to discharge his or her onus to satisfy the Tribunal that he or she passes the character test, then Ministerial Direction No.21 requires the Tribunal when considering the exercise of the residual discretion under s501 of the Act to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The three primary considerations are:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No.21, a consideration of:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated;
(c)the likelihood that the visa refusal would prevent like offences by other persons.
The "other considerations" are set out in Direction No.21 and the Tribunal is required to take them into account, but generally accord them less individual weight than the three "primary considerations".
In this respect, the Direction provides as follows:
"OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
'The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.'
Article 17.1 provides that:
'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.'
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
in assessing the compassionate claims of the Australian partner (Australian citizen, permanent resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;
(d)       family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)       any evidence of rehabilitation and any recent good conduct;
(i)        whether the applicant is for a temporary visa or a permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellations provisions at section 501."

The Tribunal finds the following facts.
On 25 April 2001, the visa applicant applied for a Sub Class 115 Remaining Relative visa as the sister of the review applicant, Mrs Kimly Neak.
The visa applicant included four children in her visa application and provided birth certificates for those children including a birth certificate for Samyut Pouv.
On 22 January 1996 however, the visa applicant had applied for and was subsequently granted a Sub Class 676 Short Stay visa in the name of Sotheary Kien. In that application she had described the review applicant as her cousin, not her sister.
Further, on 23 February 1998, the visa applicant applied for a second short stay visa in the name of Sotheary Kien, again describing the review applicant as her cousin.
In support of each of the two short stay visas, the visa applicant supplied identity and family composition documents in the name of Sotheary Kien.
On 11 October 2001, the visa applicant was interviewed in Phnom Penh by a migration case officer at the Australian Embassy. At this interview the visa applicant stated she had never previously applied for a visa at the Australian Embassy or applied using a different identity. She claimed that all four children were her children, that she had never been to Australia and had never used a different identity. When presented with a photo of herself, the visa applicant initially claimed never to have seen the person before, but later stated that she was probably a cousin. She was unable to explain the similarities between the names of her husband and the husband of Sotheary Kien and explained the similarity between the names of her children and those of Sotheary Kien by claiming to have committed immigration fraud by allowing her children to be registered as Sotheary Kien's children.
The visa applicant was subsequently interviewed the next day and at that interview she admitted that Samyut Pouv was her adopted son.
The review applicant arrived in Australian in 1976 as a refugee with her husband and two young children, leaving behind her family, including two of her own children.
The review applicant was one of ten children, one of whom, the Tribunal is well satisfied, having heard the evidence of the review applicant and the visa applicant, was the visa applicant herself, Suntary Kien.
Suntary Kien and the review applicant's remaining eight siblings and their mother and father were in Phnom Penh when the war broke out in Cambodia and when they fled Phnom Penh in 1975 they were separated.
Ms Neak's evidence, which remained unshaken and which is accepted by the Tribunal, is that her sister Suntary being a student and educated was forced to "reinvent" herself and hide her past in order to stay alive during the Pol Pot regime which saw educated people executed. So Suntary Kien became Sotheary Kien.
The visa applicant maintained her new identity and in 1992 the review applicant returned to Cambodia to discover that her sister was still alive, but that her mother and father and eight other brothers and sisters were all missing and assumed to have died during the Pol Pot regime.
The Tribunal also finds that the visa applicant adopted Samyut Pouv at birth, apparently as a result of Samyut's biological parents having no parenting skills and as a gesture in repayment to the visa applicant's uncle who had taken her in with her new identity after she had fled Phnom Penh.
The Tribunal also finds that during the Pol Pot regime, the visa applicant had been selected for interrogation and had been interrogated by Khmer Rouge and was traumatised by that experience. She was as a result, flooded with bad memories and was very nervous when she found herself in an interview situation with Ling Nuov, the migration case officer who interviewed her at the Australian Embassy on 11 October 2001.
It is not difficult to understand why Ministerial Direction No.21 provides that, in the absence of any countervailing factors, the making of a false or misleading statement in connection with any application for the grant of a visa would constitute a failure to pass the character test. Section 234 of the Act makes such conduct an offence and provides for a penalty of 10 years imprisonment or a fine of $110,000 or both.
As Deputy President McMahon said in Re Lachmaiya v Department of Immigration & Ethnic Affairs (1994) 19 AAR at 115-156:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia."
The notion of character within the context of s501 of the Act was explained by the Full Federal Court in Goldie v Minister for Immigration & Multicultural Affairs (14 September 1999) FCA 1277 at paras.5-7, where Spender, Drummond and Mansfield JJ said:
"The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities is so deficient as to show it is for the public good to refuse entry."
The starting point when considering the visa applicant's conduct is with the two earlier Sub Class 676 Short Stay visas in which the applicant used the name Sotheary Kien and described the review applicant as her cousin and provided birth certificates for all her children, including her adopted son Samyut Pouv.
In the Tribunal's view that conduct does not render the visa applicant not of good character in the sense explained by the Full Federal Court in Goldie.
The visa applicant had assumed a new identity for the legitimate purpose of survival and her continued use of that identity with such necessary modifications to her real family relationship as was necessary to ensure consistency was not an unreasonable step to take in the Tribunal's view. Similarly the description of Samyut Pouv as her child and the provision of supporting family composition documents does not in the Tribunal's view cause the visa applicant to fail the character test.
Were the Tribunal to be in error in holding that such conduct is not per se conduct which should constitute a failure to pass the character test, then in the Tribunal's view the "countervailing factor" which would militate against the finding that the visa applicant is not of good character is her original motivation which led, no doubt in terrible circumstances to the adoption of her new identity and subsequently to the adoption of her son Samyut Pouv.
Whilst the visa applicant's conduct associated with her two applications for Short Stay visas is to be considered jointly with her conduct in respect of the present visa application, it is that latter conduct which requires in the Tribunal's view, the greater attention.
The Tribunal does not find that the use of the visa applicant's former and real identity and the actual description of the review applicant as her sister is in any way false or misleading.
As to the provision of a birth certificate which does not disclose that Samyut Pouv was the visa applicant's adopted son, the Tribunal takes into account that Samyut Pouv had been adopted shortly after he was born, that he had never known other than that the visa applicant was his natural mother and that there is, on the evidence in this case, nothing to suggest other than that it is commonplace in Cambodia for this sort of adoption to occur without paperwork and with the child usually being entered in the family book as a son or daughter without any formal adoption process.
The visa applicant's lies to Ling Nuov that she had never previously applied for a visa at the Australian Embassy or applied using a different identity, that all four children in the application were her children, that she did not know Sotheary Kien, and explaining the similarities between names by her own immigration fraud, must all be taken in the context of the difficult situation in which the non-sinister adoption and the earlier use of that new identity in applying for Australian visas, had placed the visa applicant. Allowance must also be made for the visa applicant's nervousness on interview.
The respondent's delegate found that the visa applicant failed the character test on the basis of her "general conduct". It is not necessary however that there be a course of conduct and the visa applicant's behaviour on 11 October 2001 at interview could well be sufficient to cause her to fail the character test.
As to the term "general conduct" used in s501, the Full Federal Court in Minister for Immigration & Ethnic Affairs v Baker (1997) 153 ALR 463 said at 470:
"We do not think there is any warrant for extracting, from the broad word 'general', a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly."
The Tribunal is of the view that the statements made to Ms Nuov were false or misleading in the relevant sense. However, it takes the view that the countervailing factor which must be taken into consideration is the impossible dilemma in which the visa applicant's assumed identity had placed her when needing as she ultimately did to reveal her original identity for the purposes of qualifying for the appropriate visa.
The depth of the visa applicant's dilemma is clearly demonstrated by the apparent necessity in her own mind to deny her own photograph.
Even were the Tribunal to be wrong in finding that these factors are countervailing factors sufficient to save the visa applicant from failing the character test, this is a case where the Tribunal would exercise its residual discretion in favour of the visa applicant, after taking into account all of the foregoing considerations in the context of the primary considerations, and also having regard to relevant other considerations.
In other words, whilst the protection of the Australian community and its members is an essential consideration, the conduct is not so serious or of such a nature as to warrant the visa refusal for the protection of the community or by way of meeting the community's expectations. Additionally, the obvious hardship to the review applicant and the family composition of the visa applicant's family, that is to say, that each is the others sole surviving relative of a family unit of twelve, would tip the balance in terms of the discretion in favour of a grant of visa.
It follows that the Tribunal's decision is that the decision under review is set aside and the matter is remitted to the respondent for re-consideration with a direction that the visa application not be refused under s501 of the Act.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing   23 July 2002
Date of Decision   18 September 2002
Counsel for the Applicant         Applicant appeared on her own behalf
Solicitor for the Applicant
Counsel for the Respondent    Mr Phil Cadman
Solicitor for the Respondent    Blake Dawson Waldron