Re Ha and Minister for Immigration and Multicultural Affairs - [2000] AATA 896

DECISION AND REASONS FOR DECISION [2000] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/101

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GIAN KHAI HA
  Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date13 October 2000
PlaceSydney

Decision      The decision under review is affirmed.
  [Sgd] R N J Purvis
  Deputy President
CATCHWORDS
Immigration – AY preferential relative visa – last remaining relative – expectations of Australian community – protection of Australian community – character test – false statements deliberately made – relationship with family - hardship
Migration Act 1958
Migration Regulations

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Luong and Minister for Immigration and Multicultural Affairs (1999) AATA 625
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780
Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997)
Re Santos and Minister for Immigration and Multicultural Affairs (2000) AATA 567

REASONS FOR DECISION

The Hon Mr R N J Purvis, QC,

Deputy President

This is an application made by Ms Gian Khai Ha ("the Review Applicant"), an Australian citizen, seeking review of a decision relating to an application made on 30 October 1996 by her sister Ms Anh Phan Ha ("the Applicant") for an AY preferential relative visa on the basis of the Applicant being a last remaining relative. A delegate of the Minister of the Department of Immigration and Multicultural Affairs ("the Respondent") refused the application on 24 December 1999.
In the decision of the Respondent it was stated:
"Information concerning your background that was considered in assessing your application indicates that you are unable to meet one of the public interest criteria, specifically clause 4001 prescribed in schedule 4 of the Migration Regulations, for the grant of a AY (Preferential Family) visa.
A decision has been made to refuse the grant of a visa in accordance with section 501 of the Migration Act 1958. The decision to refuse the grant of a visa under section 501 means that, as a consequence, your application is also refused under section 65 of the Act.
…" (T16, p155)

In the reasons for refusing the application the delegate said:
"…
I find that in at least three applications for visas including the current application you made false statements in respect of your marital status and history, you also provided bogus document [sic], a divorce certificate and your CV. On your own statements you made false statements and provided bogus documents to enhance your prospects of obtaining a visa. I consider these actions far outweigh the fact that to date you have no criminal record.
I am satisfied that having regard to your past and present conduct you are not of good character and I am not satisfied that you pass the Character Test.
As stated previously you have made false statements in connection with entry to Australia, you have also provided bogus documents, these actions are an offence under section 234.
…
I consider your conduct to be of a serious nature. I consider your statements that you initially provided false information to assist in obtaining a visa in no way mitigate the seriousness of your actions.
If a visa were issued to you it is unlikely you would directly repeat your actions, clearly you would have little need to do so. However your actions in providing fraudulent information and documents to obtain a benefit (a visa) from the Australian Government indicates a disregard for Australian law which may well continue in Australia, should you seek any other benefit from the Australian Government. Your sponsor's action in making a fraudulent statement in the sponsorship form is an example of how this could occur. You did not take previous opportunities to provide correct information, even when your application was being assisted by a registered Migration agent. Your latest statement seeks to shift blame for your actions to others and is indicative that you are neither contrite or reformed. From this I conclude there is a real possibility you may be involved in similar actions in the future.
Fraud is not uncommon in applications received at this post. Many applicants willingly follow the suggestions of others and provide false information and documents, often encouraged by the success of others in obtaining visas after doing so. Fraud prevention is therefore a high priority for this post and part of the strategy to combat fraud is to deal severely with instances of fraud, to send a message to applicants that fraud will be discovered and the consequences are serious. This includes refusal of applications and referral to Vietnamese authorities to take appropriate action. It also sends a similar message to sponsors in Australia that their relatives will suffer if fraudulently based applications are lodged, particularly as in such cases as your [sic] where the sponsor has participated in providing fraudulent information. I consider refusal of your application would be likely to discourage others from similar actions. Approval is likely to have the opposite effect.
The other considerations which General Direction 17 indicates may be relevant but of less weight than the primary considerations are:
…
In respect of these and any other considerations I accept that:
To date you have no criminal record.
All of your family members are living in Australia.
Your mother is aged and not in good health. In respect of this I do not accept that care cannot be reasonably be provided [sic] by any of your five siblings in Australia.
You wish to live permanently in Australia.
Having considered these circumstances, I consider that the Primary Consideration of the protection of the Australian community, and members of the community and the seriousness of your conduct and the need to deter others from similar actions outweigh the considerations in favour of exercising my discretion in your favour.
…" (T16)

The Applicant maintains that the review decision was "the application of a rule of policy without regard to the merits of the case."

The Review Applicant in her statement of facts and contentions admitted that the Applicant's conduct in 1992, 1994 and 1996 is capable of falling within the provisions of section 501(6)(c)(ii) of the Migration Act 1958 ("the Act") thereby conceding that the Applicant does not pass the character test. It is however contended that there are compelling circumstances surrounding the offending conduct. The significant issue between the parties in this application is whether or not the discretion should be exercised to set aside the Respondent's decision and allow the Applicant to enter Australia notwithstanding that she does not pass the character test.
THE HEARING:
At the hearing of this application the Review Applicant was represented by Mr Christopher Levingston, solicitor and accredited migration specialist. The Respondent was represented by Ms Jodie Maurer, an authorised officer of the Australian Government Solicitor.
The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1995 were admitted and marked T1 to T17. There was tendered in evidence by the parties the following additional written material which was marked accordingly:
Report of Ms A Robilliard, dated 15 August 2000 Exhibit A

Oral evidence was given by Ms Gian Khai Ha, the Review Applicant, Ms Anh Phan Ha (the Applicant) by telephone, Mr Truang Thuan Ha, the Applicant's father and Mrs Chau Truag Hai, a married sister of the Applicant. The various witnesses were cross examined on their evidence.
RELEVANT LEGISLATION AND MINISTERIAL DIRECTIONS:
The legislation, Regulation and Ministerial Directions relevant to this application are as follows:
Section 501 of the Act so far as here relevant provides:
"501(1) 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.
…
(6) 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:
(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) in the event the person were allowed to enter or to remain in Australia,     there is a significant risk that the person would:
      (i) engage in criminal conduct in Australia; or

…
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

…"

With reference to the false statements deliberately made by the Applicant in her applications, section 234 of the Act is relevant and provides:

"(1) A person shall not in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or 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) present or cause to be presented to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(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;
(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.

(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry or to remain in Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used."

Item 4001 of schedule 4 of the Migration Regulations 1994 with reference to public interest criteria and related provisions, in stipulating a mandatory criterion for the grant of a class 104 preferential family visa, provides:
"Either:
(a) the applicant satisfies the minister that the applicant passes the character test; or
(b) the minister is satisfied after appropriate inquiries that there is nothing to indicate that the applicant would fail to satisfy the minister that the person satisfies 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 nor 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 499 of the Act empowers the minister to give policy directions. Paragraph 2.1 of the Ministerial Direction provides that, in exercising the discretion whether to refuse an application, regard is to be had to primary and other considerations. Paragraph 2.2 further provides that no individual consideration can be more important than a primary consideration but a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse a visa. Decision-makers are to have regard to the importance placed by the Government on the three primary considerations, but are to take into account all relevant considerations.
The primary considerations are protection of the Australian community, expectations of the Australian community and the best interests of a child. The latter is not applicable in this application.
Paragraph 2.6 of the ministerial direction provides examples of offences which are considered to be very serious, included amongst which is:
"…
(c) Serious crimes against the Migration Act 1958 including but not limited to offences attracting a sentence of imprisonment of 12 months or more…presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia".

Paragraph 2.8 of the direction provides that when exercising the discretion decision-makers must also take into account the relevant factors as therein identified, which factors include those described on behalf of the Review Applicant as mitigating factors.

Thus issues as to the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism and general deterrence are aspects that are to be considered.
Paragraph 2.12 of the direction as here relevant provides:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached… this trust it may be appropriate to refuse the application. 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. Decision-makers should have due regard to the Government's view in this respect".

With regard to the other matters that are to be taken into consideration paragraph 2.17 of the direction provides that these factors should be given less individual weight than that to be given to the primary considerations. Such factors are:
"(a) The extent of disruption to the non-citizen's family, business and other ties to the Australian community;
…
(c) The degree of hardship that would be caused to immediate family members lawfully resident in Australia (including Australian citizens) including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;
(d) Family composition of the non-citizen's family both in Australia and overseas;
…
(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) The fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501."

It is noted that the migration series instruction in paragraph 4.7.1 in referring to the character test provided for in section 501 of the Act provides that:
"For the purposes of the character test criminal conduct means conduct that is punishable by law and has actually been punished by conviction for an offence. Other conduct both good and bad including conduct that may be a crime that was never prosecuted, where no conviction was recorded or a non-citizen was acquitted is treated as general conduct."

Accordingly the conduct of the Applicant in this matter is to be considered under the heading of general conduct. Paragraph 4.7.2 is also relevant to this application and provides that:

"Consistent with the section 499 direction a person is in the absence of any countervailing factors not of good character under the general conduct provisions if the conduct of the person:
·resulted in offences that are the subject of charges that are not resolved pending a hearing or trial; or

…
·the conduct was never prosecuted (for example the charges were dropped resulting in no conviction being recorded)."

These paragraphs of the Migration Series Instruction referable to the character requirement tend to expand and clarify what might properly constitute "past and present general conduct".
THE FACTUAL SITUATION:
So far as it is relevant to this application the sequence of events referable to the family history of the Applicant and the circumstances in which the subject visa application was refused are as follows.
Family history:

The Applicant was born in Vietnam on 9 February 1956 and is the eldest child of a family of six children, one of whom a son then living in Vietnam died in 1996. The other four children are residing, as are their parents, in Australia. The review Applicant is unmarried, her siblings married with their own families. The parents were as to the father born in 1929 and the mother in 1934. The mother as will be detailed later in these reasons is not well and indeed it is an element in the case put by the Applicant that a primary motivation for her desire to come to Australia is the medical condition of the mother and her need of care.
The members of the family in Australia have migrated in stages, three of the children arriving in 1982 and 1987, the parents with the other child, Chau Truang Hai, in 1990. The Applicant was "over-age" in 1990 and was not able to accompany her parents as a member of the family. For whatever reason she remained living in Vietnam in the same house where she and her parents had lived before they came to Australia and where she, her late brother, sister-in-law and child continued to live after that time. The Applicant maintained her employment as a printer and later as a saleswoman.
Chau Truag Hai is now married with a child and living away from her parents. The other two children, a son and daughter, are each married with a family.
The Review Applicant lives in the same house as her parents or they with her. She is single and in employment. She provides and cares for her parents. Her father is said to be not in good health and unable to attend to his wife who experienced a stroke a few years ago. The father is a diabetic and is on medication for blood pressure.
The Applicant lives in a village in Vietnam nearby to Ho Chi Minh City and in the same house as her sister-in-law, the widow of her late brother. She said she was unable to obtain employment in a factory or office on account of Government policy towards Chinese/Vietnamese. She said that she sells produce in the market and obtains a minimal income. As appears later in these reasons this image of a lack of employment opportunity is inconsistent with her history as detailed in her various visa applications and accompanying documentation.

Visa applications by the Applicant:

In 1992 the Applicant applied for a visitor visa to enter Australia. In her application she stated that she was then married and gave details of her husband and children. She was granted a 6-month visa. The stay was extended for three months. She said at that time she obtained a visa in order to visit her parents, her mother being then seriously ill. She went to a travel agent not to the Australian Embassy or Consulate. The requisite forms, she said, were filled in by staff at the office of the travel agent. She did sign the forms. She said she was "told that in accord with Australian law if she was not married she would not be granted a visa. If she did not have children she would not be able to obtain a visa". She said she "followed" what she was told and the advice she was given.

It is apparent that the Applicant was aware of the consequence of her false statements. Even be it she was influenced as above by the travel agent she knew that she was telling untruths and making misleading statements in order for her to obtain a visa. She knew that telling lies was "not good".

The Applicant told her sister Gian Khai Ha, the Review Applicant, about the false statements in her visa application of 1992 after she arrived in Australia. According to the sister she told the Applicant that it was wrong to lie and that she should tell the truth. "She told me about the travel agent helping her. I felt that my sister had done something wrong and that she should be punished."

On 5 July 1994 the Applicant made a further application for a visitor visa to enter Australia. She went to the same travel agent that she had used in 1992. In her form of application she stated by ticking an appropriate square that she was "now married" and that her current occupation was a saleswoman in a sports shop. She noted the period of her previous visit to Australia as 11 October 1992 to 3 July 1993.
In a supplementary questionnaire of the same date the Applicant in answer to a question relating to her "spouse, declare all living, divorced and deceased" inserted:

"Luu To Tu 1943, 163 Tran Nhan Ton, P2 Q10 HCM",

and as to "Children, declare all living blood children and legally adopted children", detailed:

"Luu Ngan Trieu 1979
Luu Giam Viet 1983
Luu Tan Viet 1987 (163 Tran Nhan Ton P2 Q10 HCM)".

Her stated place of work was Ho Chi Minh City, her employer being named and the specific address given. Her sister the Review Applicant was stated as paying her fares and meeting her expenses whilst in Australia.

She said that whilst in Australia she would take care of her mother "who is seriously ill". In signing the document the Applicant declared in Vietnamese that false and misleading information given in relation to the application could result in cancellation of the visa and liability for prosecution under provisions of the Migration Act. She also acknowledged an understanding that it was her responsibility to make sure that the information in her application and the questionnaire was correct.
She said in her evidence that as in 1992 so in 1994, the forms were prepared by staff of the travel agent. She said that family members had told her of her mother being in hospital. She filled in the form as she did otherwise "I would not be able to go to Australia".

The information provided by the Applicant as to her married status, her spouse and her children together with their address was false and intended to mislead the immigration authorities. The nature of her employment as stated is not consistent with the evidence she gave before the Tribunal as to employment possibilities of Chinese/Vietnamese.

The Applicant said in her evidence that at the time she did "not know that it was illegal to tell lies to immigration". She also said that "other people had broken the law to get what they wanted" and "other people had done similar things…a lot of people broke the law and this made it hard for others to get to Australia". The latter comments by the Applicant hardly sit easily with the alleged awareness or lack thereof professed by her.

The 1994 application so made by the Applicant was refused by immigration authorities for reasons unrelated to the present application before the Tribunal.

The Applicant's current application for a visa was made on 19 October 1996. In it the Applicant designated the class applied for as "Last remaining relative" and as to her marriage status she ticked "Divorced" identifying her previous spouse as Tu To Luu born 1943 and the period of her marriage as from 20 June 1974 to 8 December 1993. She had returned to the same travel agent. She told a staff member that she needed to be single.

The Applicant stated in her application the number of children as "Nil". As to her employment history the Applicant stated that she had been employed in a printing business as a printer, this from 1971 to 1990, as a saleswoman from 1990 to 1992 and a marketing employee with Dai Hai company in Ho Chi Minh City from 1993 to the year of the application 1996. Her usual occupation was stated by her as marketing employee. As already mentioned this hardly accords with the work record, as she narrated in her evidence, of a person "trading in a market" nearby to where she lives or that of a Chinese/Vietnamese resident discriminated against because of race.

When answering a question as to where she and/or her spouse had lived in the then last 10 years, she stated "together 1986 to 1992". The Applicant stated that she had lived at the same address in Ho Chi Minh City at least from 1986 to the date of her application.

The Applicant had never been married let alone divorced. She had never had the named person as a spouse nor had her marriage extended over the designated period. Her stated employment history was other than that of a discriminated against Chinese/Vietnamese only able to work and sell produce in a local market. She and a spouse had not lived together in the house where she now resides with her sister-in-law.

To add further to her deception and the providing of false information, the Applicant appended a "divorce certificate" to her migration application purporting to dissolve her non-existent marriage. The "decision" as to divorce also purported to have the seal and signature of a Judge of the "People's Court of District 6" Ho Chi Minh City dated 6 December 1993. This forgery was sufficient to deceive a translator from the legal Consulate office/Federation of Trade Unions/Ho Chi Minh City/Vietnam.
The Applicant in her oral evidence before the Tribunal said that she obtained the divorce certificate to protect her status as a single woman. "I did not realise it was a false one" she said. The certificate could hardly have been genuine, she never having been married. In her statement of 6 December 1999 to the Australian Consulate General Ho Chi Minh City the Applicant said that "the marriage and divorce certificates were made by one of my relatives". In her evidence before the Tribunal she said that his was not true, it was what the agent had told her to say, and that the agent was the one who obtained the certificates. The Tribunal does not accept that the Applicant was unaware of the falsity of the certificates and notes that on the basis of her own evidence the Applicant was prepared to collude with the agent and tell an untruth, to lie and endeavour to mislead immigration officers as recently as December 1999, clearly recent conduct.
In a family household register compiled whilst the Applicant's brother was still alive the occupants of the house where the Applicant then lived was noted as the Applicant, her brother, sister-in-law and a child of the latter couple. The Applicant was shown as having been born in China. On her subject application the Applicant states that she was born in Vietnam. Her birth certificate accords with the latter position.

The application of the Applicant to migrate to Australia was sponsored by her sister the Review Applicant Ha Gian Khai on 10 October 1996. In the sponsorship documentation and in relation to the Applicant the Review Applicant ticked "divorced" as the then marital status of the Applicant. She, in signing the form, agreed that if false or incorrect information should be given in the form that the application of her sister may be refused. She knew that the Applicant had not been married. False and incorrect information was given by the Review Applicant, the sponsor. She said she agreed to sponsor the Applicant to help her mother who she had been looking after since the early 1990s. If the visa be refused she said she would have to continue looking after her mother and Father but "I cannot look after both of them. I would do anything to help my sister to get here, that is why I sponsored her."

By letter dated 16 September 1999 a senior migration officer at the Australian Consulate General Ho Chi Minh City wrote to the Applicant:
"…
We have information that the Divorce Certificate is fraudulent.
We request you to explain why in application lodged on 27/07/94, you stated that you had 3 children. And now, you state that you have none.
You must submit the information listed above to this office within 49 days of the date of this letter. If the documents are not received within this period the application may be decided on the information already held.
…"

On 7 October 1999 the Applicant provided a "report" to the Australian Consulate General Ho Chi Minh City in which she stated inter alia:
"Would like to report on the following facts:
In 1992, after being informed of the serious illness of my mother I decided to apply for travelling to Australia in order to care my mother and to show her only for the smallest part my gratitude. As that was the first time I lodged dossier, I didn't know what formalities to proceed to obtain the approval for my travel to Australia. Through advices from some acquaintances of mine, who applied dossier under tourist category like me I'd do better to declare I was married, so I should easily obtain the visa; too worried about and wanting to make the travel, I declared I was married and had children.
…
In 1994, my mother felt ill again, I applied once again to travel to Australia. This time also I wanted to state the truth on my personal details, but I didn't know how to rectify, so, I stated as in the last time.
…
Once again I would like to undertake that from before up to now, I am never married to anyone and I have no child. Luu To Tuu is the name of the person, I stated in the marriage certificate and the decree of divorce by myself, in fact, I didn't know this person…"
(T15, p152)

On 29 October 1999 in a further letter from a senior migration officer the Applicant was advised:

"…
In making the assessment and in deciding whether your application should be refused the following matters will be given serious consideration along with all other information:
Your history of providing false information in three separate visa applications.
Your action in obtaining and providing fraudulent documents in connection with visa applications.
You are invited to provide any information you wish to be considered in regards to whether you pass the character test or if not whether a visa should be refused. This information would generally include, but not be limited to information as to your general past and present conduct.
…" (T14, p145)

In a "statement" dated 6 December 1999 addressed to the Australian Consulate General Ho Chi Minh City, under the signature of the Applicant the following appears:
"In order to supplement my file upon the request letter of the Consul General dated 29-10-99 once again. I would like to set forth why the information in my tourist file for the previous time and for the present has some different details and I hope that you are magnanimous to consider may [sic] file applying for the family reunion in Sydney.
So far I have been a good citizen; I have non-previous conviction and non-police records at the local area. In 1992, hearing of my mother's serious conditions, I apply; I didn't know how to implement by myself the procedures applying for visa. The Marriage and Divorce certificates were made by one of my relatives, and about the declaration in the application form, I ask the services in District 5 to write the declaration and submit it for me.
In fact, previously I didn't have the intent to live in Australia because I still had an elder brother living in Vietnam and my life was also stable at that time. This was proved that I came to Vietnam in time as authorised by Australian Government.
My application for visiting my mother for the 2nd time was also made by Services in District 5, all information was like before, and I only signed on the Application.
When my application for visiting my mother was denied, I still lived in Vietnam to earn my living as usual.
When my brother died, I didn't have any relatives in Vietnam so my family wanted me to immigrate to Australia to reunite with the family, moreover, my mother is presently senile, weak and my sibling all have their own affairs, they can't take care my mother. As to my own self, now I don't still have any ties, so I can take care of my parents remaining lives better.
I hope that the Consul General would pay attention to my case and approve my file, so that I can live with my parents and siblings in Australia.
…" (T15, p146)
In her evidence before the Tribunal the Applicant said that she "partially" blamed the travel agent for her present problems in not "telling me that telling lies was against the law. I did not want to lie". The Applicant said "I was forced into telling lies by the circumstances". The evidence of the Applicant as above mentioned as to the reason for her telling lies and making misleading statements is not accepted by the Tribunal. It does not accept her declared ignorance or that she was "forced" to act as she did. She was fully aware of what she was doing and the advantage she might obtain by her conduct. She knew that she was doing a wrong act when she had it written on the documentation that she was married to a designated husband with designated children.
The Review Applicant, the sponsor, was told by the Applicant of the false marriage declaration in 1992 and later of a certificate of divorce being obtained. The Applicant said in evidence that at the time the Review Applicant was filling out the form in 1996 she knew the Applicant had not been married or divorced. She had to tell lies as the agent told her "it had to be done like this".
Physical/mental conditon of the Applicant's mother:
Mention has already been made in these reasons of the Applicant's mother, her ill health in 1992, 1994 and 1996. The Applicant has stated that she now wishes to travel to Australia in order that she might take over the care of her mother from her sister.
There was tendered in evidence a report by Ms Anna Robilliard, a psychologist, of 15 August 2000. The psychologist reported on the time she had spent with Chau Tntien Ha, the mother, and of the family that was also present in the home at the time she made a visit to it. Mrs Ha is reported as having had a major stroke in the early 1990s which has had both physical and psychological consequences. Nevertheless in about 1998 Chau Tntien Ha had with her husband made the journey to Vietnam where they had spent time with the Applicant. However the psychologist stated that Mrs Ha's condition continued to deteriorate and in the opinion of the psychologist she is unlikely to be able to make such a trip again. The psychologist noted that the Applicant telephones her mother about once a month and reported upon the reaction of the mother at such times she becoming withdrawn and tearful after the contacts.
More specifically the psychologist reported upon the physical presentation of the mother namely:
"…
At our meeting Chau Tien was observed over about a two hour period. For the most part she sat quietly and seemed quite withdrawn. She had to be assisted out of her chair by two people then steadied on her quad-stick. Her locomotion is very slow and uneven and her family confirm that she often falls. They further confirm that she is incontinent of urine and faeces and frequently has to be cleaned, washed and changed. She does not appear to be aware of her hygiene and has to be assisted. Around the home Chau Tien spends most of her time in her chair in the lounge room. She does not initiate activities at all and walks very slowly about the house on her stick. On outings, which are relatively infrequent, a wheelchair is always used.
…" (Exhibit A)
It is said that the mother requires assistance with all of her personal care including washing and dressing.
The psychologist noted that the mother responded spontaneously to mention of the Applicant's name. And any alleviation of her mood state would contribute significantly to her general well being. In the opinion of the psychologist reunion with her daughter, the Applicant and only member of her family still remaining in Vietnam would be expected to have a very positive impact on her. Ms Robilliard was of the opinion that the mother would be greatly assisted both at a physical and emotional level by such a reunion. Further that the sister, the Review Applicant, the sponsor, would be greatly assisted by the Applicant's presence as currently "she works full-time, runs the house and tends to the majority of her mother's practical needs." The Review Applicant herself in her evidence before the Tribunal commented upon the current medical condition of her mother stating that she could not walk, had difficulty in moving her hand and that she had to be fed and bathed. The Review Applicant's father also lives with her. He is not in good health or able to look after his wife. He is a diabetic and has a blood pressure condition. The Review Applicant is the one who does the cooking and looks after her parents. If the Applicant should be able to come to Australia she would be a great help in caring for the mother and when the sister is away she would know that there was somebody to care for the parents. At the present time the Review Applicant is according to her the only one looking after the parents. The mother is afraid of strangers and social organisations "could only help to a degree".
Hardship:
The Applicant is presently living in Ho Chi Minh City in the same residence that she has occupied since before 1986. In information provided to immigration officers she stated that she had resided in the house with her "husband" for the period earlier mentioned. Apart from her constant employment, again as noted in her immigration documents, she has been an active participant in sporting activities, in particular basketball. Indeed the Applicant was a member of the female basketball selected team of Ho Chi Minh City and from 1985 to 1990 contributed to the obtaining of 6 gold medals. She is noted as being a "sportswoman exemplary in training activities and competition during the process of participating in the female selected team of Ho Chi Minh City."
Nevertheless the Applicant says she is the last relative in Vietnam, this apart from her sister-in-law and that lady's child. She says that she loves her mother very much and in evidence said that she had not seen her since 1993. This is not consistent with what had been said to the psychologist. The Applicant continues by maintaining that her mother is old and "frail with illness". She said that while the family was in Vietnam they depended on each other and sees an obligation resting upon her to renew this dependency. It is noted that the family separated in coming to Australia, this of their own choice. The Applicant is, nevertheless, the eldest sister in the family, willing to look after her mother, her siblings having their own lives to live and insufficient time to take care of the parents. If the Applicant cannot come to Australia "this time" she said that she will never be able to look after her mother and that if she dies without seeing her she will never forget this for her life.
She said that she understands that she did wrong and that Australia may want to punish her. She said that she apologises. If the Australian people "knew the legal system in Vietnam it is complex, leading to lies I am very sorry." She said that she understood that if the visa was refused other people would not do what she did. Nevertheless "life in Vietnam is full of hardship and corruption is rampant." She observed that "an ordinary person is unable to get a visa by a normal channel".
It seems to the Tribunal that the observations made by the Applicant as to the legal system in Vietnam even be it complex, are not such as to warrant the deliberate misinformation provided by her. This information she knew to be wrong and she knew that she was telling untruths in order to obtain her visa.
To the family of the Applicant:
Mention has earlier been made of the alleged need of the Review Applicant to have her sister in Australia. The obligation to care for the mother and father – other siblings not being readily available and having their own responsibilities – is one that she would want to share with the Applicant.
The father is now 71 years of age. He is an Australian citizen who speaks a little English but is unable to read the language. The house he and his wife live in belongs to the Review Applicant. The role he said of the eldest daughter in Vietnamese custom is to do all the housework and if need be to look after her parents and younger brothers and sisters. The second daughter needs the help of the first daughter to care for his wife. He knew that the visa for his daughter had been refused "something about a divorce" he said.

The father is aware that his daughter made "false claims" to come to Australia but she had told him "that other people had made false papers for her to come". He told her that this was wrong in Australia and she replied to the effect that otherwise "they would refuse my application".
Chau Truag Hai, a daughter, arrived in Australia with her parents in 1990. She already had brothers and a sister then living in this country. She is now married, is working and has a 14 month old child. Prior to her marriage she had lived with her parents. She visits her mother about once a week and described her as "worse now, totally immobile". She is unable to give more assistance because of her own family commitments. She is aware of her sister's false statements in 1996 and of the complicity of the Review Applicant.
CONTRITION, SUBMISSIONS AND DECISION:
As to the character of the Applicant:
Mr Levingston on behalf of the Applicant submitted that at the end of the day, in effect it was a plea of mitigation that was to be made on her behalf. Her conduct, it was admitted of itself, was sufficient to enliven the relevant provisions of section 501. There is no doubt, it was admitted, that the conduct was sufficient "to take the decision to refuse to grant the visa".
Nevertheless in his submissions Mr Levingston did raise a number of matters concerning the Migration Series Instruction and the character requirement there referred to. It was noted that conduct, the like of that engaged in by the Applicant was to be considered as "general conduct" and the "not of good character" determination made with this in mind. It was submitted that direction 17 of the Ministerial Directions contemplated criminal or reprehensible conduct and the question was raised as to whether the conduct engaged in by the Applicant fell into this category. Paragraph 1.9 of the direction made reference to false or misleading declarations, false statements on a declaration and false statements in relation to visas. It was necessary then for the Tribunal to consider whether the conduct of the Applicant was so serious be it that no charges had been laid or conviction recorded as to enliven the power.
The substance of the submissions so made were to the effect that a refusal to grant the Applicant a visa would be to punish her for her conduct. This being a consequence of the alleged nexus between the decision to refuse to grant a visa and conduct. The Tribunal does not accept the submissions made in this regard. The statute, the Directions and the instructions clearly relate to conduct of an applicant and in the present instance general conduct of the applicant. The specific mention of misleading declarations and false statements in relation to immigration documents brings conduct, the like of that committed by the Applicant, directly into a consideration of general conduct.
The Tribunal is satisfied that in 1992, 1994 and 1996 the Applicant with knowledge falsely declared material in her visa applications and accompanying documentation. She did so in order that she might obtain a visa and with the intent of deceiving officers of the Respondent. As the phrase is used in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the conduct in which she engaged tellingly laid bare her character. Further the Applicant sought to place a measurable responsibility upon a travel agent for her deception. The travel agent may have advised her to practice the deceit. However she is an intelligent woman who has, as earlier detailed, been engaged in continuous employment and who has achieved sporting recognition. She was well aware of what she was doing. There is no issue as to the state of health of her mother. The Applicant says she was motivated to conduct herself as she did by reason of her desire to spend time with her mother and, as far as the subject application is concerned, live with her. The Tribunal notes the relevant circumstances, but whilst the filial affection is understood and appreciated, it does not excuse the conduct. This is not a situation where the mother is without other children to be with her. The presence of the Applicant to come for the mother would relieve the responsibility of others to a degree. The mother is being well cared for at the present time.
Mr Levingston sought to obtain some minimisation of the degree of culpability of the Applicant by making mention of the admissions she made to the Consulate General in 1999. However even in December of that year if her evidence before the Tribunal is to be accepted she was being untruthful. In such documentation she stated that the marriage and divorce certificates were prepared by relatives. In her evidence before the Tribunal she said that they were prepared by the travel agent. Thus, accepting as more likely the latter to have been so, she was engaging in conduct adverse to her credibility even as recently as December 1999.
Accepting as I have said the latter position to be true the Applicant is again seeking to place responsibility upon the travel agent. The Tribunal can only endorse what was said in Luong v Minister for Immigration and Multicultural Affairs (1999) AATA 625 namely that 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" as referred to in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
The Tribunal is satisfied that the seriousness of the false statements and other conduct of the Applicant detailed in these reasons is sufficient to enable it to find that the Applicant does not pass the character test pursuant to section 501(6)(c)(ii) of the Act. Her past general conduct and her recent general conduct are supportive of this finding. The admissions contained in her statements were in response to a demand for information and as has already been mentioned even then part of it was not truthful. The Tribunal notes the evidence given by relatives of the Applicant. It is not inappreciative of the bonding between members of the family. However all members who gave evidence were at various times made aware of the Applicant's conduct and the Review Applicant, the sponsor, herself was untruthful. The Tribunal does not obtain assistance in determining the character test by reference to this evidence. The Applicant has expressed an apology for her conduct and a recognition as to its having been wrong. This expression of contrition has been considered in the overall assessment of the relevant circumstances.
The Tribunal is satisfied that the Applicant does not as aforementioned pass the character test, this both by reason of her past and present general conduct.
DISCRETIONARY CONSIDERATIONS
Primary Considerations:
Even be it that the Tribunal is satisfied that the Applicant is not of good character there is a residual discretion vesting in a decision-maker. The factors to be taken into account in the exercise of this discretion have been earlier referred to in these reasons. In so far as they are relevant to the present application they are primarily the protection of the Australian community and it's expectations.
The Applicant has engaged in conduct namely the making of statements and the provision of false and misleading material, which to her knowledge were false. The commission by her of these acts may well constitute an offence pursuant to section 234(1) of the Act. Even be it that the legislation has recently been amended to increase the penalty and even be it the time limit for prosecution might in respect of some of the acts have expired the Applicant may still be liable to prosecution in respect of others of them. However as earlier mentioned the conduct of the Applicant is to be regarded under the rubric of general conduct and it was as has already been mentioned clearly conduct contrary to the provisions of the migration legislation. Her misconduct was very serious and was a violation of and a threat or challenge to the integrity of the migration procedures. The observance of truth in dealing with migration officers in relation to inter alia visa applications is of the utmost importance and this is especially so where the Applicant is the one who is aware of the actual situation. (See Lachmaiya v Department of Immigration and Ethnic Affairs. (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780 and Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997).
Falsity of information in the subject application and accompanying written material is also to be seen in the context of the Applicant's failure to correct or retract her lies and deceit until placed in a situation where she had no alternative even be it that she maintained indicia of her bad character by not being truthful as to the matter of the false marriage and divorce certificates.
The Respondent submits that whilst there is little likelihood of the Applicant engaging in further immigration misconduct if she were to be granted a preferential family visa thus fulfilling her immediate intent of gaining permanent residency in Australia, her actions in providing fraudulent information and documents indicates a disregard for Australian law which my be repeated in this country should she seek other benefits. The conduct of the Review Applicant in making a fraudulent statement in her sponsorship form is indicative of the way in which conduct the like of that committed by the Applicant can permeate into the conduct of others. There is a deterrence in recognition of bad conduct and a finding of bad character and it not being accepted by the community. A visa refusal sends a strong message to persons contemplating similar actions. The Tribunal accepts the submissions made on behalf of the Respondent. As was said in Re Santos and Minister for Immigration and Multicultural Affairs (2000) AATA 567, the strongest deterrent message possible should be sent to non-citizens as well as to any citizens who assist them in their illegal activities that they cannot anticipate a sympathetic consideration of their past misdeeds. It is this type of conduct which is "so deficient as to show it is for the public good to refuse entry" to those who engage in such behaviour.
The Respondent also submits that refusal of a visa would send a strong deterrent message to sponsors in Australia that their relatives will suffer if fraudulently based applications are lodged particularly where a sponsor has participated in providing false information.
The expectations of the Australian community have already been considered. The Tribunal is also to consider whether the Applicant has obeyed Australian laws while in Australia. The Applicant deliberately provided false information with a view to gaining benefits from the Australian government. There was a disregard for Australia's immigration laws. It is submitted that the Australian community would expect the Applicant to not be rewarded for her conduct. No person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled. As was stated in Santos (supra) at 71 "a legitimate expectation of the Australian community is not only that non-citizens seeking non-entry to this country should demonstrate their respect for and willingness to adhere to the laws of Australia but that persons like [the applicant] who have been found to have been contemptuous of these laws should not be subsequently rewarded for their misconduct". The refusal of a visa does not act to punish the Applicant but its refusal seeks the protection of the Australian community.
The Applicant maintains that even be it she is found to be not of good character that the circumstances faced by her family may be sufficient to allow a discretion to be exercised in her favour.
It was submitted on behalf of the Applicant that repetition of her past behaviour is now unlikely. Whilst she did obtain a benefit in 1992 she thereafter fully complied with the conditions of her visa. Subsequent conduct in 1994 was in furtherance of the same objective, that is, to visit her mother. The behaviour repeated in 1996, it was said, was resiled from in December 1999 in her written statement. Thus her willingness to confess her misconduct may be indicative of her contrition. The risk then to the Australian community which would warrant it's protection is minimal and the threat of possible future sanctions under the Act being imposed upon her would operate to inhibit her behaviour. This factor together with the support that she would receive from her family minimises it is contended any possibility of recidivism.
Some criticism was made on behalf of the Applicant of the travel agent. It was said that she placed reliance upon him. The agent has been identified but there is not any evidence of a prosecution in Vietnam. People such as the Applicant, it is maintained "poorly educated and unfamiliar with the intricacies of Australian immigration law and policy", should not in effect bear the whole responsibility for conduct. The tribunal does not accept on the evidence before it that the Applicant is "poorly educated" and it does not see the conduct of the Applicant as reflecting a lack of familiarity with immigration law and policy. She was aware of the image she sought to create by maintaining that she was married, living with her husband and with children. She was aware of the falsity of her marriage certificate and her divorce paper.
It has already been noted that the Applicant maintains that there is a minimal risk of recidivism as it was put by Mr Levingston "she is in effect supervised by the Act while she remains a non-citizen". It was also submitted in the context of the expectations of the Australian community that the Applicant is being punished for her behaviour. If this be so the question may arise as to whether there is a lack of "proportionality between the offending conduct and the open-ended penalty". The Tribunal does not see this as a question arising in the context of the circumstances of this application. The submissions made on behalf of the Respondent in this regard as already detailed are accepted by the Tribunal.
Other considerations:
The Applicant is the last remaining relative in Vietnam. It was maintained on her behalf that she is experiencing hardship and isolation but there is not any evidence of this being so. One might infer that it could be so but, apart from her expressed intent to spend time with and aid in the care of her mother, the evidence is otherwise. She has been engaged in continuous gainful employment and has actively participated in sporting activities. She is living in the same home in which she has resided for a number of years with her sister-in-law and the latter's child.
The psychologist did evidence the position of the Applicant's mother and the desire of that lady to have her daughter with her. Even be it the mother is quite ill and frail she is not without support in Australia this from a younger daughter and other members of the family who see her from time to time. It cannot be said as the Tribunal appreciates the evidence that the mother will "suffer extreme hardship and/or irreparable prejudice of she were unable to see her daughter and be reunited with her". The family did itself create its present situation even be it no doubt for good subjective reasons. There is no reason why on the evidence members of the family apart from the mother cannot visit the Applicant in Vietnam. Regular contact is maintained by telephone.
It was finally submitted on behalf of the Applicant that the facts of the application whilst objectively showing serious conduct also illustrate that the Applicant was under "significant emotional pressure in circumstances of an emergency which gave rise to conduct which could be described as being out of character". The Tribunal is not unmindful of the family situation that arose in 1992, 1994 and more recently but does not see it as an emergency and does not see the conduct as being "out of character". The like conduct was repeated by singular acts on a number of occasions and the initial falsifications were exemplified by the false documentation later made available and the attempted shifting of responsibility in 1999.
It is in this regard relevant to note that the conduct of the Applicant and her immigration malpractice became known to her family. The review Applicant did cooperate and assist her sister in completing documentation. She was involved in the 1996 deception.
Discussion:
The policy dictated by the direction and Instructions already mentioned requires that the other considerations are to be of a less individual weight than the primary considerations the latter being, in the present application, the protection of the Australian community and the expectations of that community. The conduct engaged in by the Applicant was of a very serious nature. The Applicant has failed to demonstrate an understanding of the true nature of her conduct as seen in the 1999 misleading explanation. She still maintained and sought to place partial reliance on the travel agent.
The importance of truth is necessary and essential in relation to visa applications. The Tribunal considers that the primary factors outweigh the other considerations, the hardship that might well be experienced by the family in Australia having been compounded to a degree by their own participation albeit limited in the deception.
The Tribunal is accordingly of the opinion that the decision under review was the correct and preferable decision in the circumstances of this application. The decision under review is affirmed.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing  25 August 2000
Date of Decision  13 October 2000
Representative for the Applicant    Mr Christopher Levingston
Advocate for the Respondent        Ms Jodie Maurer