Pham and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1108
•9 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1108
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1254
GENERAL ADMINISTRATIVE DIVISION ) Re Lien Thi Pham Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date9 November 2005
PlaceSydney
Decision The decision of the respondent is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – refusal of Other Family (Class BO) (last remaining relative) visa – application included five secondary visa applicants – visa applicant fails the character test on the grounds of his past and present general conduct including misleading and false statements in connection with previous visa applications – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s past visa applications, his life in Vietnam including the present situation of his five children – found the visa applicant knowingly or recklessly made false and misleading statements and that his evidence to the tribunal was evasive and implausible in a high degree – found that the visa applicant fails the character test – held that his immigration misconduct was very serious and that granting a visa to someone who has shown such blatant disregard for immigration laws would send entirely the wrong message – held that on balance the children’s best interests would be served by the grant of a visa but not to a marked extent – held that the interests of the children do not outweigh community protection and expectations – the decision of the respondent is affirmed.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Ayaad and Minister forImmigration and Multicultural Affairs [2000] AATA 935
Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Ha and Minister for Immigration and Multicultural Affairs [2000] AATA 896
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
9 November 2005 Professor GD Walker, Deputy President
Summary
1. The visa applicant, Nguyen Van Loc, aged 37, and was born in Vietnam and is a citizen of Vietnam. In 1995, Mr Nguyen applied for a child (migrant) (class AH) visa, sponsored by his mother, Lien Thi Pham, on the basis of him being a dependent child. At the time of that application he was aged 26. That application was refused. A short stay visitor visa was also refused. On 11 November 2002, he lodged an application for an other family (migrant) (class BO) visa, including his five children as secondary applicants.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refused Mr Nguyen’s visa application on the ground that he is not of good character including that he failed to declare he had previously been refused a visa, his previous applications did not declare his children and that he provided false information to the department about being the remaining relative. That is the decision to be reviewed by the tribunal.
Background
3. The review applicant, Lien Thi Pham, is the mother of the visa applicant. Mrs Pham was born in Vietnam on 15 June 1944 and is aged 61. She is a widow. She migrated to Australia in 1992 when her son was 23 years old and became an Australian citizen on 27 October 1994 (T p52).
4. The visa applicant, Mr Nguyen was born in Long Xuyen, Vietnam, on 30 November 1969 and is aged 37. He is a citizen of Vietnam. On 30 August 1996, Mr Nguyen asked to be considered against the criteria for a preferential relative (migrant) (class AY) visa, in particular as a remaining relative. One requirement for that visa was that the applicant be either an aged dependent relative or a remaining relative of an Australian citizen or permanent resident. In that 1996 application, Mr Nguyen claimed that he had no relatives living in Vietnam and that he was single. He also claimed that his brother had disappeared after attempting to leave Vietnam in 1989 (T p11). He reiterated this claim at a departmental interview on 29 August 1996 (T p125). His application was refused on 29 September 1996 when it was found Mr Nguyen did have a brother, Nguyen Van Tai, who was not missing but living in the same town as the visa applicant in Vietnam (T p12).
5. Following this refusal, Mr Nguyen applied for a number of visitor visas to Australia. On 3 September 1997, he applied for a short stay visitor visa, which was refused on 22 September 1997 (T p7). On 28 November 1997, he applied for a short stay visitor visa and a visa was granted on 2 December 1997 valid for one month. He subsequently arrived in Australia on 4 December 1997, departing on 4 January 1998 (T p164). In 1998 he again applied for a visitor visa but was refused.
6. Mr Nguyen lodged a further visitor visa application on 3 October 2001 which was granted on 11 December 2001, valid for three months (T p164). He subsequently arrived in Australia on 16 December 2001 and departed on 14 March 2002 (T p164). In that application, he declared that he had a wife and five children born between 1992 and 2000, all living in Vietnam.
7. On 25 September 2002, the then migration agent/solicitor for Mr Nguyen, Mr J.G. McMahon, lodged an application for an other family (migrant) (class BO) visa (T p69) with the Australian Consulate General, Ho Chi Minh City, visa and immigration section (T p62). The application also included Mr Nguyen’s five dependent children: a son, Nguyen Van Sang born 12 August 1992, now aged 13; a daughter, Nguyen Thi Le born 7 July 1994, now aged 11; a son Nguyen Van My born 20 July 1995, now aged 10; a son Nguyen Van Thien born 9 January 1997, now aged eight; and a daughter Nguyen Thi Tuyet Lan born 20 April 2000, now aged five. In the application, at question 20, he ticked his marital status as “never married” (T p71). Filed with the application, were copies of the birth certificates of his children, a copy of his household register (T9 p100) and a document titled “Declaration to Let Children Migrate” stating that his former de facto, Nguyen Thi Ni, had given sole responsibility for the five children of their relationship to Mr Nguyen and that she agreed to let the children migrate with her “husband” (T pp132-133). The consulate general acknowledged receipt of the application on 20 November 2002 (T6 p62). On 24 December 2002, Mr Nguyen’s lodged a sponsorship application of Mrs Pham Thi Lien with the consulate general (T11 p107).
8. On 10 May 2003, the principal migration officer at the Australian consulate advised Mr Nguyen, care of his agent, that the department was considering refusing his visa application on the ground that Mr Nguyen falsely declared in his subclass 101 application that he was single and had no children and that his brother was missing when in fact his brother was living in Vietnam in the same district as the visa applicant; that at the time of lodging his subclass 101 visa, he declared he had no children when the birth dates of the children listed in his current application indicated that three of his children were born before the date of his application and that the birth certificates confirmed this; that he did not disclose he had made previous applications which were refused; and that he continued to make false and misleading statements throughout the visa application process (T p125).
9. On 26 June 2003, Mr Nguyen’s agent responded to the notice (T19 p127) and made the following claims:
·The family acknowledged that certain details in the 1995 visa application were incorrect;
·The applicant’s knowledge of English is very limited, and as such he was and remains heavily dependent on his two sisters Nhung and Loan, who are Australian citizens, for assistance with translations and the meaning of terms in official documents, including migration forms;
·The applicant’s sister (her name was not given) provided advice in the preparation of the 1995 application. At that time she was of the belief that the applicant’s wife had left him and had taken the children with her. She believed that the children’s mother had sole custody of the children and she completed the form on this basis and advised the applicant;
·The applicant relied totally on the advice of his sister and acted in good faith without any intent to mislead the department;
·The applicant failed to notify the department of a change in circumstance during the processing of his application, ie the birth of his fourth child, as he claims he was unaware that he was required to do so;
·The applicant’s family was of the belief that the applicant’s brother Nguyen Van Tai was missing in Cambodia at the time of the 1995 application, the family members did not have any contact with Tai until after the applicant attended an interview in August 1996, and at the time when the application was lodged the applicant’s sisters genuinely believed that their brother Tai was missing;
·The applicant and his de facto spouse had never married and were in constant dispute and had separated many times. In 1997 and 2001 when the visa applicant travelled to Australia, his de facto spouse “was gambling then sold his house at … Soc Trang. He now leases a house at … Soc Trang” (T p128).
10. The agent also filed a statutory declaration sworn by the visa applicant’s sister, Nhung Nguyen, in which she stated that she was responsible for the completion of the 1995 application because her brother has no understanding of the English language (T p130).
11. On 25 August 2004, a delegate of the respondent decided to refuse Mr Nguyen’s other family (migrant) visa on the ground that he did not pass the character test because of his past and present behaviour including that he claimed to be single with no relatives in Vietnam when in fact he had a brother living in the same vicinity, he had been living in a de facto relationship, and children were born before and during the processing of this application; he had made no effort to clarify his circumstances with the department despite being assisted by an agent in both Vietnam and Australia; he had taken no responsibility for his past behaviour and had not acknowledged any role he has played in the provision of false information to the department on his recent visa application and had expressed no remorse for his past actions.
12. On 28 September 2004, Mrs Pham lodged an application for a review of that decision by the tribunal.
13. At the hearing, the applicant was represented by Mr Ray Turner, solicitor, and the respondent was represented by Ms Adele Alex, solicitor, Phillips Fox. The evidence before the tribunal consisted of documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), taken into evidence as Exhibit R1, together with evidence tendered by the parties at the hearing. Oral evidence by telephone was given by Nguyen Van Loc and Lien Thi Pham and oral evidence in person was given by Nhung Nguyen and Loan Nguyen.
Relevant Law and Policy
14. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
((c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
15. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
16. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
17. The issue for the tribunal in this case is, therefore, whether Nguyen Van Loc is of good character having regard to his past and present general conduct so as to be precluded from the grant of an other family (migrant) (Class BO) visa. If the tribunal decides Mr Nguyen is not of good character, it must decide whether nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.
Particulars of past general conduct
18. The decision under review relied on a number of matters in relation to the past general conduct of the visa applicant. As regards his subclass 104 remaining relative visa application in 1995,
·he failed to declare that he was in a de facto relationship at the time of his application in 1995,
·he failed to declare that he had three children of that relationship,
·he failed to declare the birth of a fourth child during the processing of his migration application lodged in 1995,
·he did not attempt to clarify his circumstances with the migration office at any time during the processing of his 1994 application, and
·as part of his claim to be the last remaining relative of his sponsor/nominator (his mother) in his 1995 application, he declared that he was single and that his brother Nguyen Van Tai went missing in 1989 while attempting to leave Vietnam and had not been in contact with the visa applicant since, when in fact he was actually living in the same town as the visa applicant.
19. In relation to his subclass 115 remaining relative visa application lodged in 2002, the respondent said that he failed to declare that he had been refused a remaining relative visa in 1996.
20. In relation to three visitor visa applications, the respondent said that the first (1997) did not disclose that he was in a spousal relationship and that he had children in Vietnam, the second (1998) did not disclose that he had family in Vietnam, and in the third (2001) he claimed that he had a de facto spouse and five children in Vietnam.
Was the brother missing?
21. The question of whether Nguyen Van Tai (“Tai”) was actually missing was crucial to the 1995 application, which depended on the visa applicant, Nguyen Van Loc (“Van Loc”) being his mother’s last remaining relative in Vietnam.
22. The decision record notes a number of facts in relation to that claim. Mr Turner contended on behalf of the applicant that those factual recitals were part of the decision and should be regarded as a self-serving statement deserving of little weight. In this tribunal such material is admissible as evidence of the truth of the facts stated in it, subject of course to considerations of weight. The applicant has had full notice of the findings and has had the opportunity at the hearing of adducing evidence to contradict them, and in fact did do so in relation to a number of points. I think it is appropriate to treat the fact findings in the decision record as prima facie evidence of the existence of those facts.
23. The record notes that routine verification with the Vietnamese authorities while the 1995 application was being processed revealed that Tai was alive and was living in the same town (Long Xuyen) as Van Loc. Van Loc’s sister also declared in her migration application in 1992 that Tai was living in Vietnam. In 1999, Tai lodged his own application for migration to Australia (T p12). In his application form Tai declared a residential address in Vietnam but did not complete question 74 which required listing any other addresses where he had resided for the previous 10 years. He made no claim that he had lived in Cambodia or that he had spent any time there. On his Vietnamese curriculum vitae, Tai declared that he lived in Long Xuyen town and assisted his family from 1982 to 1997, and that from 1997 to 1999 he lived in Soc Trang province.
24. In his application for migration in 1999, Tai claimed that his sponsor was a close friend of his family in Australia. At no time did he claim to the department or the Migration Review Tribunal (“MRT”) that his family believed he was missing and that he had lost contact with them. That would have been a significant factor in Tai’s life and his failure to mention it at the time casts doubt on the veracity of the claim.
25. Van Loc’s family also made statements in support of Tai’s migration application in the MRT, but made no claim that he had been believed missing from 1992 to 1997. There is no evidence to support the claim that he was missing during that period and the family gave no indication as to why they believed Tai was missing in Cambodia. By the 1990s Vietnam was not in a state of turmoil and there is no evidence to suggest that communications between family members would have been hard to maintain.
26. In his oral evidence the visa applicant Nguyen Van Loc maintained that he did not know Tai was living in the same area, as he was living on the other side of a bridge.
27. Tai did not give evidence at the hearing, but a document signed by him and dated 19 October 2005 (Exhibit A7) was admitted into evidence. It is unsworn, brief (14 lines) and gives no address for Tai, though it does purport to have been signed in Canberra. Addressed simply “To Whom it May Concern”, it makes no reference to these proceedings, to anything connected with migration, or to any reason why his family would have regarded him as missing. He does not mention living across the bridge from Van Loc. He simply says, in essence, that he returned from a trip to find that his family had left Cambodia, and that he continued to live there until about 1995 when he returned to Vietnam.
28. The applicant tendered a Cambodian identity card of a type designed for Vietnamese citizens present in Cambodia and which was issued in September 1994 (Exhibit A3). It therefore seems probable that Tai was in Cambodia in September 1994, but for how long after that is not clear. It would have been most helpful to have Tai’s evidence about his movements during the relevant period and some explanation of why he has never claimed in his migration applications to have lived in Cambodia or to have been missing or out of contact with his family. As he is living in Australia, and possibly in Canberra, and his evidence would be of great importance, some explanation for his absence was called for but not forthcoming. Mr Turner stated that he had informed the respondent that Tai was available for cross-examination but the offer had not been taken up. But the applicant is the party who could have been expected to call Tai and I do not think the tendering of a brief, general and unsworn communication suffices to prevent an inference under Jones v Dunkel from arising.
29. I therefore conclude that Tai was not missing and that the visa applicant Van Loc well knew it.
The statements about the de facto and children
30. The applicant conceded at the hearing that the statement in the 1995 application that Van Loc was single and had no children was false, but contended that there was insufficient evidence to show that Van Loc made the statement knowing it to be false. The claim that he had made an innocent misstatement rested on the proposition that he was unable to read English and relied completely on instructions and advice from his sister Nhung (T p128), who had filled in the form and sent it to him in Vietnam with instructions on how and where to sign it. In response to the notice of intention to refuse the visa dated 10 May 2003 (T pp125‑126), Nhung swore a statutory declaration dated 26 June 2003 (T pp130‑131) confirming that she had actually filled in the forms for his signature. She explained that
As my brother’s wife had separated from him at that time, taking the children with her, I was of the belief that as he had no custody of the children and probably no legal rights in relation to the children it was appropriate to state on the form that he had no children and advised my brother accordingly.
She did not, however, offer any explanation as to why she had stated that he was single, despite having referred to “my brother’s wife” at the hearing.
31. At the hearing, however, Nhung Nguyen, said that she had not understood the application forms at all and had left the whole matter in the solicitor’s hands. She had not explained the contents of the form to her mother. She repudiated the statutory declaration, saying the solicitor had handed it to her and she had signed it without knowing the contents, except that her name was correct. At the time of the 1995 application she had told the visa applicant Van Loc that the family was sponsoring him because Tai was missing and they were trying to bring Van Loc to Australia, on the basis that he was the only child left in Vietnam. Asked whether she had explained to him the rules for eligibility for a last remaining relative visa, she simply replied
I couldn’t afford long phone calls.
When it was put to Nhung that the 1995 application contained false statements in relation to Tai, the de facto and the children, she suffered an apparent lapse of memory:
How can I remember?
32. Nhung Nguyen’s purported belief that Van Loc should be regarded as childless because his wife had custody took a different approach from the evidence of the review applicant, her mother. Although until last year the review applicant regularly used to visit Vietnam and stayed with her son for periods of up to three months, she claimed that in 1995 she was unaware that he had three children because she was living in Australia at the time. She later conceded that she had seen the children but that their mother had taken them away. He had not declared the de facto relationship or the three children because
The relationship was on and off
and
It was up to the solicitor.
She also said she had no idea whether Van Loc had ever been married. Like her initial attempt to deny that she knew her son had three children, that was a most improbable assertion.
The visa applicant’s evidence
33. Nguyen Van Loc gave evidence by telephone from Vietnam with the assistance of an interpreter. He was a difficult witness. In many instances when a question was put to him there ensued a long silence that led those present at the hearing to think the connexion had been lost, when it had not. The interpreter then had to prompt the witness up to five times merely in order to get him to acknowledge that a question had been put, let alone answer it. He claimed an inability to recall important events in his life and many of his replies bore no discernible relationship to the question asked. Some examples:
MR TURNER: Mr Nguyen, can you tell us your full name, please?
THE INTERPRETER: My mother is old. Can you let me come to – over there so the young one can go to school over there?
MR TURNER: Yes. Could you ask him, please, does he recall who filled in his last application which was in 2002?
THE INTERPRETER: No. 2002 seems to be – 2002 my wife left us and then I am forced to look after the children by myself.
MS ALEX:And when did you meet your wife, Van Tai?
THE INTERPRETER: We sold the house and at the moment we are just living with the children over here. Well, she’s not here to meet her.
MS ALEX:Let us try another question. When did you start a relationship with your wife?
THE INTERPRETER: I’m just hard-pressed just to look after the children. Oh, I do not study any more. I have forgotten.
MS ALEX:He has forgotten; all right. One of your friends say that you had at least a 10-year relationship with your wife?
THE INTERPRETER: I’m just – we’re just waiting for the good news to go to Australia. We just want – do not want our mother to worry about us.
MS ALEX:Okay. Before we can deal about the good news about Australia he needs to answer the questions.
THE INTERPRETER: I study English in ’73 and then by the ’75 I’ve forgotten it all. It’s over 10 years. Well, one of our children were born in 1992.
MS ALEX:In 1995 he lodged a remaining relative application with the department, didn’t he? In 1995?
THE INTERPRETER: The family were – the family were broken up.
MS ALEX:I need him to answer, yes/no. I ask the question and he says yes, or no, okay?
MS ALEX:Okay. And he had an agent assisting him in Vietnam at that time, didn’t he?
THE INTERPRETER: We had no money. We try and escape Vietnam to Thailand in 1992 and then we came back to Vietnam. We just very poor in Vietnam, we’re earning very little, you know, some time there’s every month we’ve got about 50s, a hundred. I don’t whether, is it in dollars or in Vietnamese currency? The question asked was: anyone assist you to fill in the application form? The answer is: “No one help me.”
MS ALEX:Did he sign the form?
THE INTERPRETER: Hello? Hello? Hello?
It too long ago, I just could not recall
MS ALEX:Can he recall which sister he had spoken to in relation to the 1995 application?
THE INTERPRETER: All my sister and brother, the family – the whole family was broken up on the way of escaping Vietnam and I was left alone in Vietnam at the moment.
MS ALEX:Deputy President, it doesn’t seem, or I don’t seem to be getting any answers to my questions except the answers that the applicant chooses to give? If it is all right with the Tribunal I might just put a few questions to the applicant because I don’t – otherwise we could be here all morning.
MS ALEX:Right. Okay. I put it to you that you have not been truthful in your 1995 application?
THE INTERPRETER: At that time I only had a limited amount of money. I did not have much money at that time.
MS ALEX:Yes, it doesn’t answer the question. My question to Mr Van Loc was that he had not been truthful – would he agree that he had not been truthful in his 1995 application to the department?
THE INTERPRETER: Well, at that time I was – I don’t have money. I was living in someone else home and there was no phone connection at my friend’s place.
MS ALEX:And then you signed the form and you mailed it off, didn’t you?
THE INTERPRETER: I’m very tired. I’m just look after five children and please give me the visa so I can send it over there so they can attend school and have their – a brighter future.
MS ALEX:Yes, the question was: you no longer have a relationship with your wife; is that correct?
THE INTERPRETER: Hello? Hello?
THE WITNESS: Yes?
THE INTERPRETER: No, we’re not living together.
MS ALEX:When did you stop living together?
THE INTERPRETER: Hello?
THE WITNESS: Yes?
THE INTERPRETER: Well, we did not sign – we did not get marry; we do not have a sign – a marriage certificate but now that we are trying to come to Australia I will take custody of all the children.
MS ALEX:When did you stop your relationship with your wife?
THE INTERPRETER: Hello?
THE WITNESS: Yes?
THE INTERPRETER: Every day I looking after my children. I cook for them. I’ve forgotten.
MS ALEX:Okay. Does your wife – where does his wife, or ex-wife, or de facto live at the moment?
THE INTERPRETER: Hello? Hello? Hello? Hello? Hello?
THE ASSOCIATE: It is still connected.
MS ALEX:Mr Van Loc, you said that you were trying to get custody of your children. How do you intend to get custody of your children?
THE INTERPRETER: Yes, I have five children.
MS ALEX:When did his wife give him custody of his children?
THE INTERPRETER: Well, I had two girls and three boys.
MS ALEX:But has she given you custody of your children?
THE INTERPRETER: Well, I do not – well, I do not go to work, I just stay home looking after my children and then my family, they will send me money sometime $100 a month, sometime $200 a month.
MS ALEX:Okay. Have you been to the courts in relation to your children?
THE INTERPRETER: Well, I fulfil my obligation as a father.
MS ALEX:Did he go to – did you go to the Court to get custody of your children, or to get full rights to the bringing up and maintaining of your children?
THE INTERPRETER: Yes, we divorce properly and we sign a document. She want some children. I refuse. She give up and walked out.
MS ALEX:So when did you divorce?
THE INTERPRETER: I’m fed up to looking after five children as it a tough task.
34. Mr Turner acknowledged that the visa applicant was an awkward witness, but said he was not being evasive or unhelpful. He was a simple, unsophisticated man with a poor memory who had difficulty with concepts. I cannot, however, accept that as a sufficient explanation for the visa applicant’s egregious performance. A simple, unsophisticated man, even one with a poor memory, knows what he knows. He knows when he is being addressed in his own language. He knows how to answer a question about something that has happened in his life. Further, the visa applicant has worked as a salesman and has operated his own chicken business, apparently successfully, and both of those occupations would require at least average intelligence. One can only speculate on what, if anything, the visa applicant expected to achieve by much of his evidence, but I find it of little assistance to his application.
35. Mr Turner’s position was that any false statements in the 1995 application could not be relevant to character unless they could be shown to be knowingly false, and there was nothing to show that they were.
36. On 10 May 2003, the department wrote to the visa applicant, care of his then solicitor Mr McMahon, a letter setting out in detail what it claimed were the false statements and non-disclosures in relation to the 1995 application (T pp125-126). In his letter of reply dated 26 June 2003 (T pp127-129), Mr McMahon conceded that “The family acknowledges that certain details in the 1995 visa application were incorrect”. Mr Turner submitted that the letter does not state what the “certain details” were, and it could not be assumed that they were the same as those alleged in the department’s letter of 10 may 2003. But as a practising lawyer, Mr McMahon could be taken to know that failure to deny specific allegations made in those circumstances would be taken as an admission of the truth of all of them. The diffident language he used was plainly a conventional approach designed to admit as little as possible in order to avoid placing his clients in a worse light than necessary.
37. The letter does not admit that the “details” were knowingly false, but whatever doubts there might be on that point were set to rest by the extraordinary evasiveness of the visa applicant’s replies to repeated questions directed to that issue. He responded with irrelevancies such as that he had only a limited amount of money at the time, that his sister sent him detailed instructions, that he was living in someone else’s home where there was no telephone, that it was too far away for him to recall everything and that what he could remember was applying for a visitor visa to visit his family. He reluctantly accepted responsibility for the contents of the form, but it was an empty concession in light of his earlier evidence that could only be interpreted as meaning that he had nothing to do with the preparation of the form and had no idea of what was in it.
38. The only reasonable conclusion is that either the visa applicant knowingly made the false statements with intent to deceive, or that he was prepared to say or sign anything that would help him to obtain a visa and made the false statements recklessly, not caring whether they were true or false. Mr Turner argued that even if they were false, the statements were irrelevant on the issue of character because they could not materially affect his eligibility for the visa as his own dependent children would not be counted. Even assuming that he would still have been eligible to apply, the fact that he had three (soon to be four) young, dependent children could not be regarded as immaterial to his visa application.
39. The 1995 application was not the only one containing false statements about his children and spousal relationship. In his 1997 visitor visa application, he did not disclose that he was in a spousal relationship and had children in Vietnam, his 1998 visitor visa application also did not disclose that he had family in Vietnam, but in his 2001 visitor visa application, he claimed that he had a de facto spouse and five children in Vietnam. The false statements in the 1997 and 1998 applications are further examples of the visa applicant’s intentional or reckless disregard for the truth and constitute evidence of bad character in themselves. They also reinforce the conclusion that the false statements in the 1995 migration visa application were intentional or reckless. The claim in his 2001 application that he had a de facto spouse is a further explanation for his evasive responses at the hearing to questions about when he and his de facto spouse had separated, in addition to his need to account for his failure to mention her in the 1995 application (see T p136).
40. The applicant adduced no evidence and made no submissions in relation to the three visitor visa applications and the respondent’s claims in relation to them must be taken to have been admitted.
The 2002 application
41. The applicant lodged an application for a subclass 1155 other family (Class BO) remaining relative visa on 19 November 2002. The respondent points out that the visa applicant Van Loc Nguyen, in answer to question 6 (T p69): “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?”, declared only the refusal of a further visitor stay on 7 March 2002, and failed to disclose the rejection of his 1995 application and his earlier visitor visa applications. The review applicant Ms Pham did not declare that she had previously nominated, or attempted to sponsor, the visa applicant and failed to supply details of that nomination (T pp40-41).
42. In her undated statement (Exhibit A5), Laura (Loan) Nguyen stated that the family’s solicitor Mr McMahon advised her to give those false answers because the 1995 application was over five years old and therefore there was no need to disclose it. Her mother, on the other hand, explained that she had answered the question in that way because the 1995 application had failed. “Part D – About the person you previously sponsored” (T p41) was struck out by the person who helped her complete the form, by implication her daughter.
43. In his statement dated 25 February 2005 (Exhibit A5), the visa applicant Van Loc Nguyen stated that “I relay [sic] solely on my sisters to complete all forms for me. All I know is that they are sponsoring me to come over to Australia and that is what I signed for. Nor have my agent or sisters once explain [sic] to me the content of the forms”. In his oral evidence at the hearing, he denied making the statement of 25 February 2005 and said he could not recall who had completed the 2002 form, and alternatively that “I could not disclose that to you. The children were too small”. He “didn’t notice” if Laura had helped him with the form.
44. Mr Turner contended that there was no false statement in the 2002 application and that it was literally true because Van Loc had only been refused one visa, a further stay visitor visa, “in” Australia (the other visas having been refused when he was in Vietnam). The false statements by his nominator, his mother, were not relevant to the character of Van Loc. Further, the form had been prepared by Mr McMahon on Laura’s instructions.
45. The visa applicant’s reckless misstatements in his other visa applications make it improbable that his answer and non-disclosure in the 2002 application resulted from a scrupulous desire to answer the question precisely as framed, even if one adopts the construction of the question and of the word “in” advanced by Mr Turner. Further, the proposition that Ms Pham’s false statements are irrelevant on the issue of Van Loc’s character disregards the fact that her statements were calculated to serve the same end as her son’s, namely, of concealing her previous unsuccessful nomination of Van Loc for a migrant visa. It also disregarded her history, including her evidence at the hearing, of making false or misleading statements in support of Van Loc’s visa applications.
46. In those circumstances, her own false statements can be viewed as acts or declarations in pursuance of a common design with Van Loc of obtaining a visa for Van Loc by means that included the making of false or misleading statements in breach of the Migration Act. Such statements made in pursuance of the original concerted plan and with reference to the common object are admissible against Van Loc irrespective of whether he has otherwise been proved to have been concerned in that particular action. The rule relating to the evidence of co-conspirators applies in all cases in which a common design or purpose is alleged, irrespective of whether the actual charge is of conspiracy or of a substantive offence or a series of substantive offences committed pursuant to a conspiracy (see Evidence Act 1995(Cth) s 87(1)(c); Ahern v R (1988) 165 CLR 87, 93-95; and JD Heydon, Cross on Evidence, 7th Australian Edition, 2004, pp 1105-1112). Reading Van Loc’s answer to question 8 in the context of Mrs Pham’s false statements to a similar effect makes it more probable that his failure properly to disclose his earlier visa refusals stemmed from an intention to mislead rather than from syntactical pedantry. Van Loc’s false statements in his earlier visa applications, including the visitor visa applications, reinforce that conclusion.
47. Nor does the attempt to place the blame for the false statements on the shoulders of the solicitor succeed in exonerating the visa applicant. As Deputy President Purvis said in Re Ha and Minister for Immigration and Multicultural Affairs [2000] AATA 896:
[A] visa applicant cannot avoid his or her obligations to answer questions accurately and truthfully in immigration applications by asserting that reliance was placed upon someone else. It is the visa applicant’s duty to be truthful in an application and accompanying documentation and thereby demonstrate an understanding of the responsibility resting upon such applicant and the need to fully and accurately inform the Respondent’s officers of the relevant facts. The Tribunal has no hesitation in this matter in finding that the Applicant’s failure to accept personal responsibility in full for her conduct is a reflection upon her “enduring moral qualities” (paragraph 47).
48. There is also evidence of the visa applicant’s good character. He has no criminal record. His mother says he has been a good son to her and used to provide financial support to the family from Vietnam. He gets along well with the neighbours. His sister Nhung says that he works hard for the family, is a good man and a good brother. In Vietnam he contributed money and labour to help repair a broken bridge for the whole community.
Discretionary Factors
49. The evidence relevant to character set out above is also relevant to the two primary discretionary factors, community protection and community expectations. There is also evidence bearing specifically on the interests of the visa applicant’s children and other considerations.
50. At the hearing the visa applicant claimed implausibly that he could recall neither his children’s ages nor their dates of birth. From the details set out in his 2002 visa application, however, one can deduce that they are aged 15, 13, 10, 8 and 5 respectively.
51. In relation to the interests of the children Mr Turner said that the applicant relied principally on an unsworn statement dated 1 September 2005 by Mai-Nhon Nguyen, apparently no relation of the visa applicant (Exhibit A8), and on a statement by the visa applicant’s three sisters, adopted in their oral evidence (Exhibit A6).
52. Ms Mai-Nhon Nguyen says she is a project co-ordinator for eight projects in eight provinces of southern and mid-Vietnam for Hands For Hope Inc, which is responsible for providing financial support to about 300 students for their education in Vietnam. She says she has known Van Loc Nguyen and his immediate family since July 2005, in the course of a visit to Vietnam pursuant to her voluntary work. Ms Nguyen does not say how long she has been a project co-ordinator, or what that work entails, nor does she state that she has any particular expert or specialist qualifications. Her statement can, however, be treated as non-expert opinion evidence within s 78 of the Evidence Act 1995 (Cth). Ms Nguyen expresses the opinion that the children are currently living “in adversity and despair” because of their father’s unemployment and state of depression. She thinks the social welfare system of Vietnam and the family condition will affect the children’s wellbeing and education: “As an example, Vietnam possesses a pay-education system, with the family current position it’s almost definite that the children would not receive adequate education”. She could not see how Van Loc could support the children financially and emotionally, whereas in Australia they would have their aunts and uncles to support them both financially and emotionally.
53. At the hearing, however, the visa applicant said that the children are all currently in school. He also said he is currently being supported financially by his family in Australia.
54. In the joint statement (Exhibit A6) the visa applicant’s sister Mai Nguyen said that she currently owns a five-bedroom house at Ngunnawal that is currently solely occupied by her sister Nhung. The visa applicant and his children could reside at that property with Nhung and Mai would contribute $500 a month towards their living expenses.
55. Nhung said she was happy with that arrangement and that she would also contribute $500 a month for their daily expenses as well as paying for water, electricity and telephone.
56. Laura Nguyen said she would contribute $700 a month for the children’s support while they were settling in Australia, until her brother and the children could support themselves. Circumstances permitting, she would move back to Canberra and help them all to become established. The Vietnamese Buddhist Association would also help them to mix in Australian society. In her role as a Vietnamese Buddhist Team Leader and Sunday school teacher, she has decided not to have children of her own and would raise her brother’s children herself.
57. The visa applicant has said that his ex-de facto has agreed to allow the children to migrate to Australia if he receives a visa, but the respondent disputes that. Ms Alex also pointed out that the children’s mother had at one stage sought custody of some of the children, but that Van Loc had refused. At the hearing he also said that their mother had wanted access to the children, but that he had refused to permit it.
58. Mrs Pham tendered three medical certificates from her general practitioner, Dr Tuan Quoc Tran, of O’Connor, ACT. In a certificate dated 16 November 2004 (Exhibit A1), Dr Tuan expresses the opinion that Mrs Pham is suffering from chronic back pain due to a disc bulge and from depression brought about by missing her son and five grandchildren in Vietnam. A letter dated 23 June 2005 (Exhibit A2) certifies that Mrs Pham is suffering from chronic back pain caused by sciatica, making her unable to travel to Vietnam to visit her son. A letter dated 14 October 2005 (Exhibit A9) also refers to chronic back pain, sciatica and depression and anxiety caused by worrying about her son in Vietnam. If he does not move to Australia, “this will have a great impact on her mental health”. That part of Dr Tran’s (unsworn) evidence is general, speculative and seems to fall outside his area of expertise as a general practitioner rather than a psychiatrist. It does not merit great weight.
Application of the Law and Findings of Fact
59. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(b) and (c)(ii), Mr Nguyen passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
60. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Mr Nguyen does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
61. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of his or her past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b), 1.9(c), and 1.9(d), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)); or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)); or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
62. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
63. In this case, the visa applicant knowingly or recklessly made false and misleading statements to the department in respect of a remaining relative visa in 1995, at which time he was not a sole remaining relative, was in a de facto relationship with four children. He made similar false statements in several visitor visa applications and continued to provide false and misleading information to the department, including in relation to the visa application under review. His evidence at the hearing, which bordered on the grotesque, was evasive and implausible in a high degree. He was a party to an enterprise with the review applicant, and possibly his sisters Nhung or Laura or both, having the common purpose of obtaining a visa for him by means that included acts in breach of the Migration Act. He has no criminal record and his mother and sister Nhung attribute positive personal characteristics to him. Nevertheless, his record of past and present general conduct is such that he must fail the character test in s 501(1).
64. Having decided that Mr Nguyen does not pass the character test by reason of his immigration misconduct, I must then decide whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Mr Nguyen. In exercising my residual discretion, the tribunal must have regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers 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
.
65. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(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.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
66. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on the tribunal, states in paragraph 2.6(c) that offences against the Act, including “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious.
67. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
68. As regards the first primary consideration, the seriousness and nature of the conduct, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. Mr Nguyen provided false information to immigration authorities in 1995 when he tried to obtain a remaining relative visa. In that application, he stated that he was single and that his only relative in Vietnam, his brother, had disappeared in Cambodia. His brother was in fact living in the same town as the visa applicant. He also claimed to be single when at the time he was living in a de facto relationship and had three, and soon thereafter four, children. He continued to make these false statements in other visa applications, including the 2002 application, and also provided false information to the department about his marital status and the reasons for previously providing false information. His conduct, especially cumulatively, must be regarded as very serious.
69. The direction also requires the tribunal to take into account the likelihood that the conduct may be repeated (including any risk of recidivism) in considering the protection of the Australian community. In Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714 the tribunal stated:
In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.
70. In her statement of facts and contentions, the respondent submitted that the applicant had demonstrated a willingness to withhold information from the department on an ongoing basis for personal gain and that he had not demonstrated a willingness to take responsibility for his actions or was remorseful in any way (Exhibit R2). That pattern continued with his evidence at the hearing and suggests a significant risk of similar conduct in the future if he is allowed to migrate to Australia.
71. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. Granting a visa to someone who has shown such blatant disregard for Australian immigration laws would send entirely the wrong message to anyone contemplating similar misconduct. In Re Ayaad and Minister forImmigration and Multicultural Affairs [2000] AATA 935, the tribunal described the rationale for that approach in these words:
Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourable considered.
Expectations of the Australian Community
72. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … 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.
73. In my view the community expects that the migration program will be administered with integrity and humanity. In a situation where the number of visas available to prospective immigrants is necessarily limited, in practice if not by legislation, that implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.
The Best Interests of the Child
74. The third primary consideration is the best interests of the child. I note the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
75. Mr Nguyen has five children under the age of 18, Nguyen Van Sang aged 15, Nguyen Thi Le aged 13, Nguyen Van My aged 10, Nguyen Van Thien aged eight, and Nguyen Thi Tuyet Lan aged five. All those children are included in his migration application. In October 2002, Mr Nguyen provided to the Australian Consulate General in Ho Chi Minh City, a document titled “Arrangement of Children Custody” dated 14 August 2002, certifying that the children’s mother, Nguyen Thi Ni agreed to her ex-husband having custody and responsibility for their five children and agreeing to “let her children migrate with her husband” (T p133). In her statement of facts and contentions, the “respondent contends that the document provided by the Visa Applicant indicating that she [the mother] had given up all rights to the children is spurious at best” (Exhibit R2). For present purposes, however, I will assume that the mother would consent to her children moving to Australia with their father.
76. In a statement filed with the tribunal (Exhibit A5) the applicant said:
I ask for your honours to take the interest of my children in making the decision. The children’s grandma, aunties, uncles and cousins are all resided in Australia. Even though the children’s mother is living in Vietnam but she doesn’t wan [sic] to take the custody of them. For me, with my illiteracy and unemployment I can’t provide them with a good life and a proper education. They are very young with futures ahead of them, I wish your honour to act in the best of their interests.
77. Paragraph 2.15 of Direction No 21 states that “In general terms, the child’s best interest will be served if the child remains with its parents”. Both the parents of the children in this case are living in Vietnam. At present they have little contact with their mother, but that is because the visa applicant has refused to allow her access to them, contrarily to her own wishes. The countervailing considerations in paragraph 2.15 pointing to the child’s best interest being served by separation from the non-citizen, namely, evidence of abuse or trauma, are not present in this case. The children are Vietnamese citizens and have spent their whole lives in Vietnam with their father, and much of the time with their mother as well. Ms Mai Nguyen thought the children’s education could suffer because Vietnam has a fee-paying education system, which would make it “almost definite” that the children would not receive adequate education. At present, however, they are all in school and there is no evidence to suggest that they cannot continue their education. Ms Nguyen did not suggest in her statement that Vietnam’s school system was in any general sense inferior, and there is no other evidence to suggest it might be, except presumably in the teaching of English. Originally established by the French, the Vietnamese school system has in the past had the reputation for academic rigour exceeding that of its Australian counterparts. Whether that is still the case is unclear, but there is no a priori reason for presuming that the children would receive a substandard schooling in Vietnam. The health care system may be a different matter, and it is probably safe to assume that the children would have better access to medical attention in Australia. Normally, however, children and young people are not large users of health care services unless they have some particular medical condition, and there is no evidence to suggest that any of the children in this case has any particular health problems. Indeed, there is very little evidence about the children at all.
78. The visa applicant’s sisters are apparently currently providing financial support for him and the children. In their statements they express an intention to contribute between $500 and $700 a month each towards their support in Australia, but presumably they could continue to contribute to their financial support if they remain in Vietnam.
79. In a general sense, however, it is safe to say that the children would have a more comfortable life in Australia than they would in Vietnam, subject to the caveat that the older children would face real difficulty in learning a completely new language to the level required for higher secondary or post-school education. At the end of the day one can conclude that on balance the children’s best interests would be served by the grant of a visa, but not to a marked extent.
Other Considerations
80. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
81. While the visa applicant’s mother and six of his siblings are currently living in Australia and there is a significant connection with Australia, the visa applicant has an equally strong connection with Vietnam, namely, in that all his five children live there. The connection with Vietnam is at least as significant as the connection with Australia. The children’s family on their mother’s side is all in Vietnam, as is their mother herself. The review applicant would probably suffer some temporary emotional hardship if a visa were refused, but she has an extensive family support network in Australia. The same is true of the visa applicant’s sisters. They make relatively regular visits to Vietnam during which they see their brother and will no doubt be able to continue doing so.
82. In my view, the other considerations and the best interests of the child, which in this instance only marginally favours the grant of a visa, do not outweigh the primary considerations of community protection and expectations. The decision under review should be affirmed.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker
Signed: .....................................................................................
AssociateDate/s of Hearing 24 June 2005 and 20 October 2005
Date of Decision 9 November 2005
Solicitor for the Applicant Mr R Turner
Solicitor for the Respondent Ms A Alex, Phillips Fox Solicitors
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