Peng and Minister for Immigration and Multicultural and Indigenous Affairs

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

Migration Act 1958 ss. 20, 31, 234, 417, 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
Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
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 991

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2002/446
GENERAL ADMINISTRATIVE DIVISION     )

Re LAY YIM PENG

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:  Deputy President S A Forgie
Date:  2 October, 2003
Place:  Melbourne

Decision:The Tribunal affirms the decision of a delegate of the respondent dated 11 October, 2002.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 29 May, 2002, the applicant, Ms Lay Yim Peng, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 11 October, 2002. That decision was to refuse to grant to Mr Bony Aok a Sub-class 309 (Spouse) (Provisional) Visa on the basis that he did not pass the character test within the meaning of s. 501 of the Migration Act 1958 (“the Act”).

At the hearing, Ms Peng was represented by Mr Patel of Counsel, and the Minister by his solicitor, Mr Kennedy. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence together with a copy of Mr Aok’s birth certificate, a statutory declaration by Ms Peng dated 2 May, 2003 and a personal history of Mr Aok. Oral evidence was given by Ms Peng and Mr Aok.

THE ISSUES

The first issue is whether Mr Aok passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(2) should be exercised to refuse to grant him 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 Aok was born in Takeo Province in Cambodia on 15 October, 1966. His father, who was a driver for the Cambodian Red Cross, has died but his mother, Ung Tho, and his sister, Aok Samnang, who was born on 1 June, 1984, live in Phnom Penh. His sister is a student at the Beong Keng Kang High School.

From 1970 until 1975, Mr Aok was a student at the Prah Keo Morakot Primary School in Phnom Penh but, in 1975, he and his family were evacuated to Srok Phnom Srok in the Battambang Province of Cambodia. That evacuation occurred under the Pol Pot regime. He and his family were forced to work day and night. His father became blind and then died.

From 1980 until 1985, Mr Aok studied at the University of Fine Arts and graduated with an Arts Degree. He then worked as a teacher at the School of Fine Arts in the Ministry of Culture. Between 1993 and 1996, Mr Aok undertook further studies and graduated with a Masters Degree in Music Composing.

On 13 December, 1999, Mr Aok applied for a Subclass 420 Entertainer Visa. It was granted on 24 December, 1999 and permitted him to remain in Australia until 15 May, 2000. He arrived in Australia on 24 January, 2000 and, a few months later on 3 May, 2000, he applied for a protection visa. His application was refused on 15 May, 2000 and he applied to the Refugee Review Tribunal (“RRT”) for review of that decision on 30 May, 2000. The RRT affirmed that decision on 31 January, 2001 after a hearing on 29 January, 2001. On 23 March, 2001, Mr Aok applied for Ministerial intervention pursuant to s. 417 of the Act to substitute a decision more favourable than that of the RRT. In a letter dated 25 May, 2001, the Minister declined to exercise his powers under that section.

While that matter was under consideration by the Minister, Mr Aok married Ms Peng on 17 March, 2001. The genuineness of their marriage is not in question. Ms Peng came to Australia from Cambodia on 25 August, 1983. She arrived when she was 12 years of age with her parents. One of her parents was a refugee but she has not seen them for a long time. Ms Peng left school in Year 10 when she was 15. She met Nguyen Huy Son in approximately 1987 and lived with him in a de facto relationship until 1992. As a result of her relationship, Ms Peng has three daughters: Kim Nguyen born on 6 July, 1989, Sophie born on 6 July, 1990 and Ellie born on 15 October, 1991. Ms Peng’s fourth child, Bo Manet Hayden Aok was born on 22 July, 2002 and Mr Aok is his father. Kim is in Year 8 at school, Sophie in Grade 7 and Ellie in Grade 6.

As a result of her pregnancy, Ms Peng resigned from the job she had held with Starr Rubber since August, 1996. She receives a Parenting Payment and associated benefits from Centrelink amounting to $1,228.14 each fortnight. When her husband left Australia, she borrowed $10,000 from friends to purchase his air fare home and support him until he found work in Cambodia. She repays the loan at the rate of $600 each month. Mr Aok has found employment as a keyboard player in a restaurant and earns between $US10 and $US15 each day. Ms Peng’s mother, who is 63 years of age, lives in Adelaide with her two unmarried younger brothers. Her three married sisters also live in Adelaide as does her older brother, who is married with two children.

On 23 March, 2001, the Minister declined to intervene in the RRT’s decision. As a consequence, Mr Aok became an unlawful non-citizen on that day. He remained in the community in Australia until he was located by compliance officers of the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) on 7 March, 2002. On 7 May, 2002, Mr Aok applied for a Sub-class 309 (Spouse) (Provisional) Visa.

THE EVIDENCE

Ms Peng said that she had previously sponsored a person other than Mr Aok as her spouse. That person was her cousin, Pech Sophouk, but she had not revealed the relationship to the Department. She said that she had not done so as they had thought that she was not allowed to marry her cousin. Her application for sponsorship was refused. After a year, she said that she visited her cousin in Cambodia but they had been apart too long. She returned as she was too busy with work. Each of them saw other people. It would cost “just too much money to get him here”, she said. Ms Peng said that she could imagine that the Department thought it was not genuine but it was genuine to her. She went to see an agent but, when he said that appealing against the refusal of the visa would take a lot of time and money, she and her cousin decided to finish it there. After the application was refused, she had not lived with him. She did not have the money to go to Cambodia and did not feel like going there. Ms Peng denied that she never had any intention of living in Cambodia because of the conditions there. She said that she had been there in 1999 and 2000. Ms Peng said that what she had written in a statutory declaration dated 7 June, 2002 was true i.e. “Since I had no intention to live in Cambodia, I abandoned the marriage and file for divorce in 2001, so I could re-marry again” (T documents, page 248). She meant that back then; she had nothing with him. Later, she explained that she could not see herself going to Cambodia. Although she previously had feelings for her cousin, when she arrived in Cambodia, each of them had changed. The difference between her cousin and Mr Aok is that she lived with Mr Aok for a year. She knows him more than she knows her cousin. Things have happened in his life and she feels very sorry for him. He is good to her and the children.

Ms Peng said in her statement that she had not met her husband before they met in October, 2000 at the house of one of her friends. Subsequently, they developed a very intimate relationship and then Mr Aok moved into her flat in October, 2000. Soon after she met him, she said in her statement dated 2 May, 2003, he told her that he had applied for a visa to stay in Australia permanently and was waiting for the grant of a visa. When he moved into her flat, he told her that his application for a visa had been refused and that he had lodged an appeal against that refusal. In January, 2001, Mr Aok told her that his appeal had been dismissed and that he did not have a visa. She said that she advised him to see a solicitor and he agreed to see Mr Hyams. Later, Mr Aok told her that the Minister had refused his application for a visa and that he was required to leave Australia. As she did not want him to leave, Ms Peng said, she advised him to remain.

In cross-examination, Ms Peng said that she did not know at first what kind of visa Mr Aok had applied for. By the time that he told her that his application had been dismissed, he had moved in with her in October, 2000 and told her that he was seeking a refugee visa. She could not recall if he had moved in with her before or after she gave evidence in support of his case in the RRT. She thought that she had gone to the RRT with him in September, 2000. That was before he had moved in with her but after she had decided that he could. He was just too busy to do so at the time. She was aware at that time what he was claiming and that was a time before she married him. Later, when told that the RRT had given its decision on 31 January, 2001, Ms Peng confirmed that she had gone to the RRT hearing. The decision records that the hearing was held on 29 January, 2001. She said that she did not see the letter sent to Mr Aok with the RRT’s decision.

Ms Peng said that she did not know at the time that Mr Aok was lying about his claim to be a refugee. She had no doubt that he was telling the truth. Now she knows that he was lying and “knew for sure” after her application for a spouse visa had been refused. What had convinced her was a document from Cambodia stating that he was lying.

Ms Peng said that she loved her husband very much. If he is refused a visa, she will have to leave Australia and live in Cambodia with her children. Life would be bleak for her and the children in Cambodia, which she described as a very poor country. She would not be able to educate her children in English as the fees in private schools of a standard comparable with Australian schools are very expensive. A Fee Schedule from the Northbridge International School Cambodia showed that the annual fee for a full day student ranged from $6,000 for a kindergarten student, through to $6,600 for Grades 1 to 5, $7,600 for Grades 6 to 8 and $8,200 for Years 9 to 12. The annual capital fee for new students was $1,800 and for returning students was $1,200. In government schools, the language of education is Khmer although English, French and German are taught as second languages. Her children are taught Khmer language and culture in one lesson each week. They are able to identify the letters of the alphabet and some words but cannot speak the Khmer language.

Ms Peng’s elder three children are enrolled at State Schools in Australia. Her eldest, Kim Nguyen, has shown ability, a conscientious approach and commitment in attaining a grading of A in each of her subjects. Sophie and Ellie are maintaining a good standard of learning at primary school.

Ms Peng said that she is unable to work until her youngest child grows up. If she and her children had to return to Cambodia, she would not be able adequately to feed the children and provide for their health care. Ms Peng attached to her statement a note from Dr Uma Prasad dated 30 April, 2003. Dr Prasad stated that Ms Peng’s mother, Mrs Kim Gna who was born on 16 October, 1939, suffers from cervical spondylitis and, as a result of that, suffers from vertigo. Mrs Kim Gna is not fit to look after young children.

Ms Peng said that she had lived with her husband for a couple of months in Cambodia. She first went back when her husband returned to Cambodia and stayed with his family. That visit lasted from March until May, 2002. Ms Peng said that she paid her sisters $1,000 to care for her children while she was away. The money was intended to cover food costing up to $150 each week and the rest of the money was a service fee, she said. As her husband would not have let her pay that amount of money, which she agreed was substantial, she did not tell Mr Aok that she had paid it. Ms Peng returned to Cambodia in July and remained there until December, 2002. If her application is unsuccessful, she will wait a while, get her money together and then take herself and the children to Cambodia.

Ms Peng said that the father of her three elder children has been in gaol but has now been released on home detention. He continues to have contact with his children since he has been in prison for the last five years. Ms Peng did not expect him to continue to have contact with the children once he was released because he would be selling heroin. Later, Ms Peng said that he had been in contact with his daughters before he went to gaol. He found her telephone number and telephoned her every two to three weeks. Ms Peng said that he had asked if it was all right for his children to see him in gaol. She said that his children did not want to see him or to talk to him. She said that he telephoned her begging her not to take the girls to Cambodia and to wait for him to come out of gaol and to take the girls.

Her three girls have known what it is like to live without their father and she does not want her son to go through that, she said. Ms Peng said that she realised that her daughters’ education would be compromised were she to return to Cambodia. She was not saying that a father figure was more important to them than their education. What she was saying was that there was no-one to look after them if she left them in Australia while she went to Cambodia. She would not leave them with their father and they would end up in a worse position. Ms Peng said that she would rather have them with her. She denied that she had no intention of going to Cambodia. She had a husband and she loved her husband. Ms Peng said that she would not want to take the children to Cambodia but that if she has to she will.

Mr Aok said that he came to Australia on an Entertainer’s Visa because he had been asked to join a group of singers and musicians. His relationship with his former wife had broken down several times before this. She was “going up and down Australia” and asked him if he could come. He did not know if it was a trick or not. Mr Aok said that he came to Australia to see if his former wife was playing games with him. Friends had told him that she was going out with another and so he decided that he had to look after himself.

When he arrived in Australia on that visa, Mr Aok said, he intended to return to Cambodia. After discussions with his friends and his relatives, he decided that there was no hope with his former wife and he had to look after his own interests. He decided that the best way was to apply to remain in Australia as a refugee. Quite a few of his friends who had escaped to Australia had been successful in their applications. He knew of others who had come on an Entertainer’s Visa and been allowed to stay. Others had not been successful. When it came to his turn, he said, the law could have been changed and he was not successful. He does not know what to do next. Some of those who had been successful suggested that he should apply for a refugee visa if he had had any involvement with politics. As he had a “bit” of involvement, he put that in the application form. When he had waited and waited but had not receive anything, he decided to get married.

Mr Aok said that his marriage was not related to his visa application at all. He asked people if he could get married. When he was told that he could, he did. He said that he was still waiting for a reply from the Embassy regarding his application for a refugee visa when he married. Mr Aok said that he married after the video conference from Melbourne. He had applied for a Medicare card and obtained a driver’s licence but was still waiting for a reply regarding his refugee visa. When asked what visa these proceedings concerned, Mr Aok said that it was what his spouse had arranged for him to come back to Australia but that he had no idea what it was about.

He said that he did not know that his refugee visa had been refused on 31 January, 2001. It had been refused before but he was told that he could apply to the Tribunal. He knows nothing about the process and is doing what he has been told to do. Mr Aok said that he did recall giving evidence before the RRT but did not receive a letter written in Khmer. Mr Aok confirmed that he was living at the address to which the RRT had written on 23 February, 2001 notifying him of the decision (T documents, page 132) but maintained that he had not received any notice of the RRT’s decision. Mr Aok said that he did recall instructing his solicitor to seek the Minister’s approval. He did that after he had married Ms Peng. At that time, he said, his wife realised that he did not have a visa. He said that he was still waiting to hear from the Minister and had no news.

Mr Aok said that he was visited by Departmental officers when he lived at Salisbury and told that his visa had expired. He said that he was “totally surprised” to find that he had no visa. The officers came to his house approximately a month before he returned to Cambodia on 29 March, 2002. He was told to report to the Department each week and then told to return to Cambodia. Mr Aok said that he had moved to Salisbury in approximately January, 2002. Mr Aok said that he recalled going to see his agent, Danny, when his visa was refused but was not sure for which refusal. Mr Daniel Hyams, who is a lawyer and migration consultant, wrote to the Department on 23 March, 2001 seeking an exercise of Ministerial discretion under s. 417 of the Act (T documents, page 134).

Mr Aok said that he knew that he had remained illegally in Australia. There had been no problem in getting married but then everything began going wrong and more and more complicated. Consequently, he just did what he was told. He could not recall whether he had a meeting with Mr Hyams before he returned to Cambodia and thought that his wife might have. Mr Aok could recall discussing matters with his wife regarding the current proceedings but could not recall whether or not they had done so regarding the application for a refugee visa.

Mr Aok said in a statement dated 3 May, 2000 (Exhibit 2) that, in 1998, he involved himself spiritually and materially in politics in Sam Reangsy’s party. He was the coordinator for Kompong Chhnang Province, composed the party’s music and participated in concerts during the province’s campaign. Mr Aok said that his family has never been at peace since that time. He has been robbed at gun point and his motorcycle taken from him. One night, after he had finished playing at the Mekong Night Club, he was pursued and shot at. The windscreen of the car was broken. He was beaten and his nose broken. Mr Aok said that he dare not return to his home as he is a target to be destroyed in a country where there is no stability. Hun Sen soldiers shoot, kill and kidnap members of opposition parties under the guise of robbery.

Mr Aok repeated these claims in an interview at the Australian Embassy in Phnom Penh on 5 August, 2002 (T documents, page 253). He said that he did not know what claims had been made in his protection visa application. A friend made the application for him and he did not know what was in it. When asked why he had said what he said at the Embassy, he replied that he had a very bad memory and he was “talking a lot of nonsense”. By saying that, he thought that he would be able to be reunited with his wife.

In that interview on 5 August, 2002, Mr Aok is recorded as saying that his wife worked at Starr Rubber but that she had now had their baby:

“… The doctor told me yesterday that my son was born on 22 July 2002. I’m not sure what his name is yet. I wrote to my wife the name AOK Manet. She sent me the papers to sign but they haven’t arrived yet. I can’t remember the Australian name she put.” (T documents, page 254)

In cross-examination, Mr Aok said that he thought that the interview had occurred before the birth of his son but then accepted that it had occurred after that date. When it was suggested that he had not been told for nearly two weeks of his son’s birth, Mr Aok said that he was confused but accepted what the document said. He had contact with his son over the telephone and has contacted his wife’s daughters and regards himself as their father. He took them shopping and to festivities.

Mr Aok said that he has contact with his daughters, who live in Cambodia, but added that there are problems between him and their mother. Those problems have been caused by relatives, who have been “talking nonsense”. Those relatives say that he had been saying bad things about his daughters’ mother. She has become very resentful and told their daughters bad things about him. At the date of the hearing, Mr Aok said that he had not seen his daughters for a couple of months. When asked whether he expected to have more contact with his daughters in the future, Mr Aok replied that he suspected very much that the relationship had broken down by money matters. When he was working in Australia, he would send money and they think that he will do the same now that he is in Cambodia. As things are, he is barely surviving, he said. Perhaps if he is able to give them money in the future, they will come back to him, Mr Aok said. The money that he sent them was given to them as pocket money when he played in a band in Australia. He was given the money but did not know whether it was lawful that he did so or not. When he lodged the application for a bridging visa, Mr Aok said, he was told that he could not work and he stopped working but people would feel pity for him and give him money when he played at parties.

His wife has re-married and he has seen her only twice since he returned to Cambodia, he said. He has no intention of clearing up the misunderstanding with his wife; she has now re-married and he cannot have such contact, he said. His younger daughter has visited him against her mother’s wishes but he has since heard that her movements have been restricted. His older daughter is now a popular singer in Cambodia and does not rely on him for support, he said. Later, Mr Aok said that he had not made any efforts to contact his daughters even though they lived quite close to him.

Mr Aok said that he did not have enough confidence that he would be able to support his wife and the four children in Cambodia. Living there would be a great misery for them, he said.

In a letter dated 9 September, 2002, Mr Hyams wrote to the Australian Embassy in Phnom Penh that:

“You suggest that our client lodged a spurious application for a protection visa to prolong his stay in Australia. Our client maintains his claim that he is an active supporter of the SRP. Our client instructs that he did not claim to be in Cambodia on 24 November 2000 and believes that this was a misunderstanding. He does however concede that he exaggerated his claims of persecution order top (sic) prolong his stay.
It is correct that there was encouragement from the local Cambodian Community. It is unfortunate that this type of conduct is all too often characteristic behaviour in the Cambodian community. It must e (sic) remembered that the applicant hails from a region where corruption is rife and where honesty does not reap any rewards. This is not an excuse for the applicant’s exaggerated story but it is important to realise that the applicant comes from a political culture where such behaviour is considered more or less acceptable. (T documents, page 263)

In cross-examination, Mr Aok agreed that he had exaggerated his claims. As he had said before, everything had gone wrong during his application for that visa. He had married and had a family; he did not want to be separated. Everything was made up and everything was wrong, he continued. Mr Aok agreed that he had applied for the visa before he met his wife. He also agreed that he had known that he had remained in Australia illegally and that he had known that his application for a refugee visa had been refused. Mr Aok said that he had given evidence earlier that he had not known of the refusal because he had not been very sure whether he had received the letter of refusal.

He said that he no longer had contact with those members of the South Australian Cambodian community who had encouraged him to apply for the refugee visa. His wife does not have any contact with them either. If his application were refused, Mr Aok thought that people would find out about it. The news would spread through the community.

Mr Aok said that he could not recall applying for a bridging visa before he left Australia but did recall it when his attention was drawn to it (T documents, page 175). It was dated 7 March, 2002 and stated that his reason for not leaving Australia before his visa expired was:

“Because I was a member of opposite party in Cambodia so I scared the Government kill me” (T documents, page 175)

When asked why he had repeated the lie in that application, Mr Aok said that everything had not been done by him. Everything was done by someone telling him what to do and doing it for him. His wife and he knew very little about the laws. He accepted that it was all lies and mistakes.

In his application for a spouse visa, Mr Aok had said that he had never had a visa cancelled or refused a visa in Australia (T documents, page 180). He said that he should have answered “yes” and not “no” and had realised his mistake later. He and his wife had answered some of the questions on that form but a person from Melbourne had helped fill in others, he said, because they did not understand. Mr Aok said that he had not paid too much attention to the question. He had asked some people to have a look at it and they thought that it was correct. It was not until he had his interview with the Departmental officer that he realised his mistake.

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 Mr Aok’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 Mr Aok may have engaged as set out in s. 501(6)(c)(i) and upon his 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 Mr Aok pass the character test?

Mr Patel conceded that it is open to find that Mr Aok did not pass the character test. On the basis of the evidence that has been given in this case, I agree that this is an appropriate concession to make and am satisfied that Mr Aok does not satisfy the character test. In particular, I am satisfied that Mr Aok made false or misleading statements contrary to 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.”

There are often difficulties in communicating with another person through an interpreter. There can be loss of nuance and even confusion of meaning. Therefore, care needs to be taken to ensure that apparent inconsistencies in a person’s statements translated into English are not immediately pounced upon as being untruthful. They must be seen against the whole of the person’s statements and, preferably, the whole of the person’s statements over a period of time. In this case, I have had the advantage of hearing Mr Aok, have read transcripts of his previous interviews and heard his explanations as to what he has said at those interviews and in his written statement and applications. Having considered all of these matters, I am satisfied that the apparent inconsistencies are inconsistencies of substance. They are not the result of difficulties in making his meaning clear but of his wish to avoid confronting his own actions and to obfuscate what he has done in the past.

One example of his making false or misleading statements is found in his application for a refugee visa. Mr Aok signed the application for the visa setting out claims that he acknowledged to be overstated. He claimed that others had told him what to write in the application but the fact that he did what he was told does not detract from his adopting the statements as his own. On the basis of his own evidence that he was “talking a lot of nonsense”, I am satisfied that Mr Aok claimed persecution that did not occur. He did so in his application for a refugee visa and in the statement that he made in support of that application. He continued to do so through his interview at the Embassy at Phnom Penh and at the hearing at the RRT.

Another example of his making a false or misleading statement arises from his stating in his application for a bridging visa that he had not been refused a visa or had a visa cancelled. By the time that he lodged the application for that visa on 7 March, 2002, he had been refused a refugee visa. I am satisfied that, at the latest, he knew that his application had been refused. In cross-examination, Mr Aok acknowledged that he knew that he had not been successful in his application for a refugee visa when Mr Hyman applied to the Minister for the exercise of his discretion to make a decision in place of the RRT’s decision to refuse his application. That application had been made on 23 March, 2001 and so almost a year before he applied for a bridging visa.

I am satisfied that Mr Aok also continued to make misleading statements at the hearing. His evidence that he did not know that his application for a refugee visa had been refused ran counter to his later acknowledgment that he recalled his solicitor’s applying for an exercise of the Minister’s discretion. Some people may be so confused by process that they do not understand that his or her application must have been refused but I do not consider Mr Aok to be one of them. He tried to explain his earlier evidence that he had not known of the RRT’s refusal of the application by saying that he meant that he had not received the letter from the RRT advising him of that fact. I do not accept that he had intended that by his earlier evidence but had intended to say that he had not known of the refusal of his application by the RRT on 31 January, 2001 and notified on 23 February, 2001.

I am satisfied that Mr Aok’s Entertainment Visa permitted him to remain in Australia until 15 May, 2000. He applied for a Refugee Visa within a fortnight of that visa’s expiring. On one view, it may be of no consequence that he left his application until his Entertainer’s Visa had almost expired. At another level and when viewed against the whole pattern of his applications and his actions, it is of some consequence. It is part of a pattern of adapting his applications and his behaviour to remain in Australia at all costs and even to the extent of remaining here when he had no visa and so no legal entitlement to remain.

He was quite entitled to apply for the Refugee Visa but it was while that he was waiting for the outcome of his application and when he was fully aware that his application had been made on false grounds, that he met and began a relationship with Ms Peng in October, 2000. I accept Mr Aok’s evidence that he was being assisted by others as to the ways in which he could remain in Australia. Forming a relationship with an Australian citizen or permanent resident is a possible avenue and it is reasonable to expect that Mr Aok was aware of it. On the basis of Ms Peng’s evidence, I find that she did not know that his claims to be a refugee were false when she attended that hearing at the RRT. As that hearing was held on 29 January, 2001, this means that Mr Aok entered the relationship with her in October, 2000 allowing her to believe that his claims were true. It might be said that his not telling her is a moral issue but it is a relevant in considering Mr Aok’s character in the context of a s. 501 consideration. While her belief in his claims does not determine the outcome of his application, his forming the relationship possibly advanced his interests in remaining in Australia and his not telling her did not allow her to take his uncertain status into account in determining her attitude to their relationship. His not telling her did not give her a possible reason, had she wished to take it, to end their relationship or to defer it pending the outcome of his applications. She did, after all, have the interests of her children to take into account as well as her own and his feelings.

I find that Mr Aok married Ms Peng on 17 March, 2001 when he knew that his application had been refused and while he waited for the outcome of his request for the exercise of Ministerial discretion. On the basis of Mr Aok’s evidence, I find that Ms Peng knew by then that he did not have a visa and that he was waiting for the outcome of his request to the Minister. When his application to the Minister was refused on 23 March, 2001, he became an unlawful non-citizen. Rather than complying with Australia’s migration laws, he waited to be found by the Department’s compliance officers.

Having regard to these matters and the evidence as a whole, I am satisfied that Mr Aok has engaged in the course of conduct I have set out above in order to improve his life. No criticism is to be made of a person who strives to improve his or her lot but, in doing so, he has shown a disposition to disregard the laws of the country where he seeks to carry on his endeavours. In the circumstances, the words that I said in Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 are equally applicable to Mr Aok:

“54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia’s migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows …”

I am satisfied that Mr Aok has some regard for Ms Peng and for her children and their son and would seem, on his evidence, to have some popularity as an entertainer in the Cambodian community in Australia. Those traits, however, do not outweigh the continuing disregard that he has shown for Australia’s migration laws and I find that he is not a person of good character. He 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 Mr Aok’s conduct; the likelihood that he 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 Mr Aok’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 a 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 Mr Aok as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Aok’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 Mr Aok not be refused a visa on the basis of his not passing the character test?

Mr Aok’s actions in remaining in Australia after the expiration of his Entertainer’s Visa were not consistent with the public good in so far as the administration of its immigration laws are concerned. He knew that his claim for a Refugee Visa were not legitimate. This was not only contrary to Australia’s migration laws but was a grave abuse of the process that has been put in place to protect people who require protection.

It is difficult to view Mr Aok’s actions benignly. His actions in forming a relationship with Ms Peng without telling her of his situation and his remaining in Australia unlawfully do not speak well of him. They are serious matters.

Viewed overall, his conduct shows a continuing disregard of Australia’s migration laws. His disregard does not centre, for example, on one untruth or contrivance that must be maintained. Instead, there has been an untruth that he had to maintain before the Department and the RRT but also an untruth to his spouse and his misleading evidence to the Tribunal. Given this history and the findings that I have made regarding his evidence in the Tribunal, I find that Mr Aok gives every indication of a person who will disregard not only Australia’s migration laws but perhaps its laws generally if it is in his own interests to do so. There is no evidence to show that he has actually disregarded any of Australia’s general laws but, in my view, far too little time has passed to show that he is a person who has changed his ways and will not in the future disregard the law if it is in his own interests.

I find that Mr Aok was a person who entertained the Cambodian community in Australia. On the basis of his own evidence, I find that he was given money by those whom he entertained. Whether that was in breach of the migration laws is not a matter that I have explored. It does show, though, that he was known to some extent at least in that community. In view of that, it is reasonable to expect that a refusal of a visa to Mr Aok will become known. Mr Aok himself agreed that it would become known at least in the Australian community among those who have come from Cambodia. Accepting for these purposes that Mr Aok was encouraged in his false claims by members of that community, his being refused a visa on the basis of his failing the character test is reasonably likely to have some effect in deterring others from engaging in similar behaviour.

In the circumstances, I have reached the conclusion that the Australian community would expect that Mr Aok not be permitted to come to Australia. It may be that its expectation would change at a later time as Mr Aok shows that he is prepared to abide by the law.

I accept that Mr Aok has a relationship with Ms Peng and her children and their son but the extent of that relationship is difficult to ascertain. Ms Peng’s children knew him for approximately eighteen months before he left Australia. On the evidence that I have, it would seem that he has not seen his son, who was born on 22 July, 2002. I accept his acknowledgment that he did not immediately know of the birth of his son and that he had not known of it for a fortnight. Why he did not is not apparent from the evidence. Since leaving Australia, he has not seen Ms Peng’s daughters. I accept the evidence of Ms Peng and Mr Aok that he talks to them on the telephone.

I accept Ms Peng’s evidence that, were she to live in Cambodia, she would not be able to provide her children with the education that they would receive in Australia and that they would be disadvantaged. I also accept that they have seen little of their birth father in recent years but I do not accept that he does not wish to have a relationship with them. He has not seen them because he has been incarcerated but, on Ms Peng’s evidence, I find that he has telephoned her regularly wanting to talk with them and begging her not to take them to Cambodia. In the absence of hearing from their father or from the children themselves, I do not accept that he and they do not have a relationship or that they would not derive some benefit from it.

There can be no question that, ideally, the interests of children are best served if they are brought up in a household comprising both their parents. Regardless of whether Mr Aok is granted a visa, this is a case in which it is most unlikely that all of the children would ever find themselves in that situation. Putting that issue to one side, I am satisfied that their best interests lie in their remaining in Australia where they were born and have grown up and where they have at least an opportunity to maintain or develop a relationship with their birth father. Australia, and not Cambodia is their home. Given the relatively short period of time that Mr Aok lived with them and what I regard as a small and distant ongoing contact that he has maintained with them from Cambodia, I am not satisfied that he does have a strong ongoing relationship with the girls. As for his son, his absence has meant that he has not built up such a relationship. In the short term, his interests are best served by remaining with his mother although, in general terms, it can be said that the presence of a father in his life would be in a son’s best long term interests.

Having regard to the interests of the children, I consider that the interests of Ms Peng’s daughters are best served by their remaining in Australia. Given their son’s very young age, it is of little consequence to him whether he were taken to Cambodia or remained in Australia. These are matters that need to be taken into account by Ms Peng and Mr Aok. Ms Peng has said that her family cannot care for her children if Mr Aok cannot live in Australia and she were to live in Cambodia. I accept that this may well be the case. Ms Peng has said that she will take the children to Cambodia so that she can live with her husband. These are choices that are for her to make in consultation with Mr Aok. She married Mr Aok at a time that she knew that he did not have an ongoing entitlement to live in Australia. That he might not be able to live in Australia and that she might have to choose between the interests of her children on the one hand and the interests of her husband and her own interests on the other was a necessary consequence of her choosing to marry him.

As to where Mr Aok’s best interests lie is a matter of conjecture. He obviously has ties with Australia through Ms Peng and her children and their son and wants to come to Australia. On the basis of his evidence that he entertained and was advised by members of the Cambodian community, I find that he has some ties in Australia outside his immediate family but the length or strength of those ties is a matter for conjecture on the evidence that I have. He also has a family in Cambodia and states that his contact with them is minimal and not expected to improve in the future. It may be that this is so but his removing himself from the country minimises the chances of his having greater contact with them and it would seem from his evidence that his younger daughter has sought him out.

Taking all of these matters into account, I have decided that the factors relating to the protection of the Australian community outweigh those relating to the interests of Mr Aok and Ms Peng and their children. His disregard of Australia’s laws and his likelihood of doing so again if it suits his own interests outweigh any benefit to the children that might come from allowing him to live in Australia. It may be that Ms Peng and Mr Aok decide that she will take the children to live in Cambodia so that they can be together. If they do so, that is a matter for them but the fact that they may do so and, in my view do so against the best interests of Ms Peng’s daughters, is not a fact that alters my view. As their mother, Ms Peng must take that into account and a decision for which she must take responsibility if she chooses to follow Mr Aok and take her children with her.

Taking all of these matters into account, I have decided that the discretion whether or not to refuse to grant Mr Aok a visa should not be exercised in his favour. That is to say, he should be refused a visa on the basis that he does not pass the character test.

For the reasons I have given, I affirm the decision of a delegate of the respondent dated 11 October, 2002.

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

Signed: ....sgd P. Paczkowski................................

P. Paczkowski Associate

Date/s of Hearing  8 May, 2003
Date of Decision  2 October, 2003
Counsel for the Applicant             Mr G. Patel
Solicitor for the Applicant            DGA Consultant Pty Ltd
Counsel for the Respondent         Mr M. Kennedy
Solicitor for the Respondent        Australian Government Solicitor

[2003] AATA 991

2 October 2003