See and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 118

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 118

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/1013

GENERAL ADMINISTRATIVE  DIVISION		)
Re		See Seu Yinh

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date9 February 2004

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Ngov Eang Cheng.

...............................................

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – subclass 309 (provisional) spouse visa – character test – visa refused on the basis that the Visa Applicant not of good character because of her past and present general conduct – examination of the Visa Applicant’s immigration history – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant – held compassionate considerations for the Applicant and Visa Applicant outweigh other considerations – discretion should be exercised in favour of the Visa Applicant – decision of the Respondent set aside with a direction that discretion not to refuse the grant of a visa should be exercised in favour of the Visa Applicant.

Migration Act 1958 ss 499, 501, 501(6)(c)(i)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Re Leha and Minister for Immigration and Multicultural and Ethnic Affairs [2000] AATA 1054

ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

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 February 2004 Mr RP Handley, Deputy President           

Summary

A delegate of the Minister refused Ngov Eang Cheng’s application for a subclass 309 (provisional) spouse visa on the ground that she is not of good character as a result of false statements made in previous visa applications.   This is the decision to be reviewed by the Tribunal.

Background

1.      The Applicant, See Seu Yinh, was born in Stung Treng Province, Cambodia, on 3 February 1950 and is aged 53.  He has resided in Australia since 1992 (T p169) and became an Australian citizen on 29 August 1995 (T p67).  In 1979, he married Teung You Fang with whom he had three children; they were divorced on 1 October 1999 (T p41).  Mr See works as a printer.  He lives with and cares for his mother who is aged 88.

2.      The Visa Applicant, Ngov Eang Cheng, was born in Phnom Penh, Cambodia, on 2 May 1969 and is aged 34.  On 24 June 1991, she married Yun Sath and they had one child, a daughter, Yun Leak, born on 7 September 1992 and now aged 11 (T p78).  They were divorced on 18 February 1994 (T p38).

3.      On 22 October 1997 and 23 December 1997, Ms Ngov lodged applications for a subclass 676 tourist visa in the identify of Ngov Ieng Cheng (T22 p152 and T23 p158).    In these applications, Ms Ngov declared a false date of birth – 1 January 1969, that she was married to Ngov Heng, included her nephew, Ngov Kapou, as her son, and included her daughter under another name, Ngov Gech Chhoung.   The applications were refused on 5 November 1997 and 29 December 1997 respectively.  Ms Ngov was not told the reasons for the refusals.  Apparently, the decision-maker was not satisfied that a genuine visit was intended.  

4.      In 21 December 2001, Mr See contacted Ms Ngov by telephone after being given her telephone number by Ms Ngov’s sister whom he met whilst shopping (T p132).   Mr See and Ms Ngov communicated by telephone and letter between December 2001 and November 2002.

5.      On 12 November 2002, Mr See went to Cambodia to meet Ms Ngov with a view to their marrying (T p168).  On 19 November 2002, Mr See and Ms Ngov were married in Phnom Penh (T p72).  Following the wedding, Mr See remained in Cambodia, living with Ms Ngov and her family, before returning to Australia on 5 January 2003 (T p168).

6.      On 9 December 2002, the Australian Embassy in Phnom Penh received an anonymous letter stating that Ms Ngov had entered into a fake marriage and paid money to an Australian man to sponsor her to come to Australia.

7.      On 12 December 2002, Ms Ngov applied for a subclass 309 (provisional) spouse visa sponsored by Mr See.  She was interviewed at the Australian Embassy in Phnom Penh on 19 March 2003 (T18).  At that interview, she was asked whether she had made any previous visa applications to which she replied “No”, but then admitted to this when shown copies of her tourist visa applications.  She also admitted that she had falsely declared her date of birth and marital status and that she had falsely included her nephew as her son.  Moreover, the Family Registration Book presented with those applications belonged to a distant relative who was not her husband (T pp128-133).   At the interview, Ms Ngov was also asked about the genuineness of her marriage with Mr See.  She denied that it was a “fake marriage” (T p134).

8. On 12 May 2003, a delegate of the Respondent decided to refuse the grant of a visa to Ms Ngov on the ground that she is not of good character because of her past and present general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T2 p6).  On 20 June 2003, Mr See applied for a review of this decision with the Tribunal.

9.      At the hearing, the Applicant was self-represented and the Respondent was represented by Ishan Muthalib, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the parties. Mr See and his friend, Sayon Sanya Ly gave evidence in person and Ms Ngov gave evidence by conference telephone from Cambodia.

Relevant Law and Policy

10. 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 are met. The relevant ground in the current matter is paragraph (c), as follows:

Having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)the person’s past and present general conduct;

the person is not of good character;…

11. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..

12. 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.

13. The issue for the Tribunal to determine in this case is, therefore, whether Ms Ngov is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 partner (provisional) visa. If the Tribunal decides she is not of good character, it must decide whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.

Evidence

14.     Mr See and his former wife and children escaped from Cambodia to a refugee camp in Thailand.  They were accepted as refugees in New Zealand in December 1989 and from there they moved to Australia in 1992.  The marriage subsequently broke down and Mr See separated from his wife, who has since remarried.  Their three children continued to live with her, and Mr See began living with his mother, who is aged 88, in a three bedroom rented unit in Cabramatta.  Mr See’s oldest child, his daughter, who is aged 23, is no longer living with her mother but lives elsewhere.   His two sons, who are aged 20 and 15, are still living with his ex-wife and Mr See pays her child support for the younger son.  He also gives his children extra cash sometimes when he sees them, which is usually every few weeks.  Mr See works as a printer in a factory at Strathfield earning about $395 net per week.

15.     Mr See said apart from his children, his mother is his only other relative in Australia.  Although, at 88, she is reasonably healthy, her memory is poor and she has trouble with her legs and with walking.  She needs daily care and supervision and does not normally leave their home during the day.  However, every Sunday a driver takes her to the Anglican Church in Cabramatta, of which she has been a member for the past 20 years.  Mr See cooks, cleans, shops and generally looks after his mother.   She receives a pension.  He does not like to leave her on her own while he is at work during the day.  Mr See was able to arrange for members of the Church and local community to look after her when he went to Cambodia to get married in November 2002.

16.     Mr See said he learned of Ms Ngov through her sister, Ngov Eang Chou (“Chou”), whom he met in the Cabramatta markets in about late November 2001.  They got talking: he told her of his divorce and of the hard times he had experienced; she told him of her sister and the hard times she had experienced.  A couple of weeks later when Mr See and Chou met, she gave him Ms Ngov’s telephone number in Cambodia.  Mr See phoned Ms Ngov and they shared their stories.  Over a period of about a year talking on the phone, he came to like and then love her.  They exchanged photographs and letters, and Mr See also talked with Chou on four or five occasions including visiting her at her home. 

17.     Ms Ngov said her first marriage ended in divorce because, not long after they were married, her husband discovered that she was not a rich Chinese girl as he had expected.  Because he was a police officer and thought he was powerful, he became abusive towards both her and her family.  This included his physically abusing Ms Ngov after she became pregnant.  As a result, she moved back to live with her parents and began divorce proceedings on 19 March 1992 (T p116).  They were already separated when her daughter was born, but the divorce was not finalised until 18 February 1994.  Even so, her ex-husband continued to threaten her.  At one time, Ms Ngov moved away from Phnom Penh to escape from him and lived in Battambang and two other towns for a couple of months. 

18.     Ms Ngov said she was granted sole custody of her daughter on her divorce.  She began using a different name for her daughter so that people would not know who her father was.  In 1997, her ex-husband was continuing to threaten Ms Ngov and her family and she decided to try and get away and visit her sister in Australia.  Her sister Chou had married an Australian citizen – Ms Ngov attended the wedding – and moved to Australia in 1994.  Ms Ngov always intended to return to Cambodia after visiting her sister in Australia for a couple of months. 

19.     Ms Ngov went to see a person who used to work as a migration officer for help in completing an application for a tourist visa.  He advised that for her application to be successful, she needed to be married and have children at home so that the Australian immigration authorities would be satisfied that she would return to Cambodia after the visit.  Ms Ngov nominated her cousin Ngov Hing and her nephew Ngov Kapou as, respectively, her husband and son.  Ms Ngov did not tell them that she was doing this.  She stated her daughter’s name as Ngov Gech Chhoung, the name Ms Ngov used for her, rather than her birth name.

20.     Ms Ngov said the man who assisted her with the application organised the false Family Book submitted with the application.  Ms Ngov acknowledged that the application also misstated her date of birth as 1 January 1969 rather than 2 May 1969 although she does not know how this happened.   The reason for her proposed visit was stated to be to visit her sister and cousin whom she had not seen for a long time.  Ms Ngov said she does not have a cousin in Australia – this was a mistake and she acknowledged that the application failed to state that she wanted to get away from her abusive ex-husband.

21.     When the first application for a tourist visa was not successful, nobody gave her any reason for this.  Ms Ngov assumed that perhaps the Australian authorities had received too many tourist visa applications at that time.  So, after a while, she completed a second application, copying the information from the first application.   Again, when this application was unsuccessful, nobody gave her any reason.

22.     Ms Ngov acknowledged that another of her sisters, Ngov Eang Muoy, also subsequently married an Australian citizen – Ms Ngov was present at her sister’s wedding – and moved to Australia in 2002, before Ms Ngov was married in December 2002.  Ms Ngov thinks this sister has fairly recently been abandoned by her husband.  Ms Ngov admitted that, when talking on the phone, she had told her older sister Chou, that if Chou met someone of a similar background in Australia, she would like to get to know that person.  Ms Ngov said since her divorce in 1994, she had not had any other relationships and had not thought of marrying again.  She had had expressions of interest from men from Taiwan and the United States introduced by friends of friends.  These men asked if she wanted to meet them with a view to marriage.  She told them “No”, she was not interested, and never even asked about their backgrounds. She also had offers from two or three Cambodian men but also told them that she did not want to get married.

23.     Ms Ngov learned of Mr See through her sister Chou who told her that he was a kind man who had had an unfortunate marriage.  Mr See was the only person her sister found for her.  Mr See phoned Ms Ngov – they both said this was on 21 December 2001, although Mr See’s Telstra’s account indicates this may have been on 10 December 2001, they talked and exchanged photos.  They found they had something in common.  Over time, a relationship developed and she came to love him.  Although she had never previously thought of remarrying, she and Mr See discussed this and, before he came to Cambodia, they had decided to get married.  The arrangements for the wedding were made by Mr See’s auntie (his mother’s sister) and uncle in Cambodia, by Ms Ngov’s parents and by Ms Ngov and Mr See.  Ms Ngov denied emphatically that she paid her husband to marry him.  She married him because she loved him.  She said her marriage is genuine and could not explain the “dob-in” letter received at the Embassy in Phnom Penh.  Mr See paid all the expenses associated with the wedding.  He said it was his duty as the man to pay for these. 

24.     Mr See said he also paid for his return air ticket to Cambodia, the first time he had returned to Cambodia since escaping to Thailand.  He saved and borrowed money in his community in Cabramatta to pay a dowry according to Chinese custom and for all the wedding expenses, including for the 300 people who attended the wedding celebration at the restaurant.  He paid US$60 per table for 36 tables, a total of US$2,450.  Mr See denied that his wife paid money to marry him.  He married her because he wanted her to be his wife. 

25.     Mr See said when he arrived in Phnom Penh and was met by Ms Ngov at the airport, her kindness was immediately apparent in her caring attitude towards him and her daughter.  Ms Ngov said she was very happy when she met Mr See at the airport.  She was already in love with him.   Initially, Mr See stayed in premises at a shop belonging to Ms Ngov’s father.  Then after Mr See had formally asked for Ms Ngov’s hand in marriage, he stayed at her family home although they did not sleep together until after the wedding.  The formal asking for her hand in marriage took place about three days after he arrived in Cambodia.  Mr See’s auntie and uncle came.  Mr See asked for Ms Ngov’s hand in marriage and her father agreed to give her away.  Gifts were then exchanged.  Mr See said he bought biscuits and fruit and gifts for Ms Ngov’s family.

26.     The wedding took place on 19 November 2002.  Afterwards, Mr See stayed on with his wife until returning to Australia on 4 January 2003.  They went sightseeing together on a motorbike.  He said he also got to know and love his wife’s daughter.   Ms Ngov said her daughter loves him and regards him as her father.  Her daughter has called him “Daddy” since Ms Ngov told her of the proposed marriage, before Mr See came to Cambodia. Ms Ngov said she does not need her ex-husband’s permission to take their daughter out of Cambodia because Ms Ngov has sole custody. 

27.     Mr See said they obtained the spouse visa application form for Ms Ngov from the Australian Embassy in Phnom Penh.  They got someone Ms Ngov knew of who helps with forms, to help them fill out the application.  This person would ask them questions to enable him to complete the answers.   Mr See acknowledged that his children were not named in the application.  He said he had not understood what needed to be included.

28.     Ms Ngov acknowledged that she did not declare her two previous unsuccessful tourist visa applications in the spouse visa application.  She apologised and she said she very much regrets this and the problems it has caused, particularly for her husband and his mother.   She had not told her husband of them.  She did not think she had to mention them because the applications were unsuccessful.  Also, she did not want Mr See to think badly of her.  The spouse visa application was lodged on 12 December 2002.  Ms Ngov said when she was interviewed at the Australian Embassy on 19 March 2003, she told the officer that she married her husband because she loved him. She was devastated when she was notified that her application had been refused.

29.     Mr See said he was very surprised when his wife’s spouse visa application was refused.  He asked her about the two earlier tourist visa applications of which he was not aware.  She said she had applied because she wanted to get away, following her divorce, and in order to visit her sister in Australia.  She had not told him about this before because she did not want him to get the wrong impression and as a result not love her or wish to marry her.  Mr See said he was angry at first and said she should have told the truth.  However, he understood the hard times she had been through with her divorce, similar to those he had experienced, and when she asked him to forgive her, he did so. 

30.     Mr See said he has not seen his wife since he returned to Australia on 4 January 2003.   He has seen her sisters in Australia from time to time.  He talks to her on the phone using phone cards – and often phones her on impulse when he misses her.  Sometimes he also speaks to Ms Ngov’s daughter who calls him “Dad”..  A long time has passed since he saw his wife and it is very hard.  He does not know what he will do if her visa application is refused.  He may save up and go to Cambodia to live with her.  He truly loves her and said a husband and wife should be together.  Mr See said his only relatives in Cambodia are his mother’s sisters. 

31.     Ms Ngov confirmed that since Mr See returned to Australia on 4 January 2003, they have maintained contact by phone, speaking almost every day.  Ms Ngov often phones from an internet café because it is cheaper.  They sometimes write letters and send photographs.  Mr See often sends her money two or three times a month, the sums varying from US$150 to US$400.  Last fortnight he sent US$150.  Ms Ngov said Mr See sends this money as an indication of his goodwill and because he wants to support her as his wife. 

32.     Ms Ngov said her family are average middle class people.  She acknowledged that in answer to a question on her spouse visa application, only her four brothers and sisters living in Cambodia are mentioned (T p39).  However, later in the application, there is reference to her three other siblings: her two sisters in Australia and her brother who is currently studying in New Zealand, paid for by her family (T p53).  Ms Ngov said she works as a dressmaker.  She has two “helpers” who work with her but who pay to learn from her.  She continues to live with her parents.  The statement in her spouse visa application that she has assets valued at $16,000 is correct.

33.     Ms Ngov said she answered “Yes” to question 58 of the application “Did you enter into this relationship with your partner solely to gain permanent residence in Australia?” (T p43) because she intended to live with her husband in Australia.  She misunderstood the question as she stated at interview at the Australian Embassy on 13 March 2003 (T p132).  If granted a visa, her plan is to better herself and become a good citizen of Australia.  She will do “the right thing” according to Australian law and live “the right way” by everyone, including looking after her family.  If her application for a visa is refused, she hopes her husband will come and live with her in Cambodia.

34.     Sayon Sanya Ly gave evidence in support of Mr See. Mr Sayon is originally from Cambodia and is a teacher at Cabramatta Public School and Liverpool Girl’s High School.  He passes Mr See’s flat on his way to work every day.  He has known Mr See for about four years.  One day when Mr Sayon was passing, Mr See said “hello” to him in Cambodian and they began to talk.  Gradually, a friendship developed as they shared stories about their backgrounds in Cambodia.   Mr See also told Mr Sayon about his situation in Australia:  how his ex-wife committed adultery and gambled his money,  how he misses his children,  about his elderly mother for whom he cares, and his reluctance to remarry because of the risk that what he experienced with his first marriage might be repeated.  Mr Sayon said Mr See is an honest and caring person. He is friendly towards his neighbours and in the community. 

35.     Mr Sayon said he has met Mr See’s mother and sees her once or twice a week.  Mr See finds it very stressful looking after his mother on his own.  He desperately needs someone to help care for her – to do the cooking and cleaning and look after her while Mr See is at work during the day.  Although she is mostly healthy, she has a painful leg and is unable to look after herself all the time.  While Mr See was in Cambodia when he got married, people from the Anglican Church and from the community looked after her. 

36.     Mr Sayon said Mr See was very upset when his wife’s visa application was refused.  She had not told him about her previous tourist visa applications.  Mr See told Mr Sayon that she should have told the Department about these applications.  However, Mr See has said he has forgiven his wife and loves her more.  Mr Sayon said that in Cambodia, conduct like that of Ms Ngov’s is commonplace: “you have to do this sort of thing to survive”.

Application of the Law and Findings

37. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Ngov passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

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).

38. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Ms Ngov does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that Ms Ngov does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

39.     Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test.  Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

40.     Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings.   Ms Ngov admits that she made two tourist visa applications in 1997 which contained false and misleading information and, consequently, a false declaration, and that she submitted a bogus family book in support of her applications.   The Tribunal accepts her evidence that her intention was to get away from Cambodia for a while – in particular from her abusive ex-husband, and to visit her sister who had married an Australian citizen and moved here in 1994.

41.     Ms Ngov was advised that her tourist visa application should refer to a husband and at least two children to whom she would be returning in Cambodia.  She therefore included her cousin as her husband and her nephew as her son, and the person who advised her supplied her with a bogus family book including them as members of her immediate family.   Ms Ngov also referred to her daughter as Ngov Gech Chhoung rather than as Yun Leak, her birth name.  Ms Ngov said Ngov Gech Chhoung was the name used for her daughter to avoid her being linked with her father, Ms Ngov’s abusive ex-husband.

42.     Ms Ngov could not explain the incorrect date of birth stated in the applications (1 January 1969 rather than 2 May 1969) and the Tribunal finds that this was probably a mistake by the adviser.  The applications stated Ms Ngov wanted to visit Australia in order to visit her sister and cousin.  Ms Ngov gave evidence that she does not have a cousin in Australia and so, to that extent, this was also false information.  The Tribunal accepts her evidence that she was not informed of the reason for the tourist visa applications being refused.  After the first application was refused, she made a second application a few months later believing that the refusal of the first application might have been because too many applications were received at that time.

43.     Mr See and Ms Ngov obtained a spouse visa application from the Australian Embassy in Phnom Penh. Again, they obtained the assistance of someone who helped others in completing the form.  The Tribunal notes that both Mr See’s and Ms Ngov’s English skills are poor although it was apparent at the hearing, for which an interpreter was used, that Mr See was able to understand some spoken English. The spouse visa application contains inaccuracies: for example, at question 34, only four of Ms Ngov’s siblings are included (T p39) although at question 14 of Form 40SP, the sponsorship form, Ms Ngov’s three other siblings (two sisters in Australia and a brother studying in New Zealand) are included (T p53), obviously in error since this question requests details of all those included in this sponsorship.  The spouse visa application also fails to include details of Mr See’s children at question 53 (T p42).  The Tribunal attributes these inaccuracies to mistakes by the adviser, of which Mr See and Ms Ngov were apparently unaware.

44.     The spouse visa application also fails to reveal Ms Ngov’s previous unsuccessful tourist visa applications (T5 p36).  Ms Ngov’s evidence is that she had not told her husband of these – she did not want him to get the wrong impression of her – and she did not refer to them in the spouse visa application because the previous applications were unsuccessful.  The Tribunal finds Ms Ngov’s failure to declare these previous applications was another false statement by her of which Mr See was unaware.

45.     Ms Ngov attended an interview at the Australian Embassy on 19 March 2003 (T p18).  She said the record of interview is incorrect when in answer to question 7 “Who completed your spouse application?”, it records “my relative”..  Ms Ngov said the person who helped complete the form was not a relative but someone of whom she knew who helps others complete forms.   During the course of the interview, Ms Ngov initially denied having previously applied for a tourist visa, but when shown her photograph which was attached to the 22 October 1997 application, she admitted to the applications and that they contained false information as to her husband and son and were accompanied by a bogus family book.

46.     The Tribunal does not accept the Respondent’s submission that Ms Ngov’s tourist visa applications were to enable her to seek a better life in Australia.  While Ms Ngov said she wanted to get away from Cambodia for a while because of her abusive ex-husband, nevertheless she also wanted to visit her sister Chou who had been in Australia for three years. The Tribunal accepts Ms Ngov’s evidence that she had always intended to spend a couple of months with her sister and then return to Cambodia.

47.     The Respondent also submitted that Ms Ngov entered into a contrived marriage for the purpose of obtaining entry to Australia, and that the relationship between Ms Ngov and Mr See is not a genuine one.  The Tribunal rejects this submission.  The Respondent conceded at the hearing that Mr See’s character is not in question.   Indeed, the Tribunal finds that all the evidence supports a finding that his involvement in this matter has been entirely honest and frank.  The Tribunal does not accept the “dob-in” letter (T p6) allegation that Ms Ngov paid Mr See to enter into the marriage.  After the introduction through Ms Ngov’s sister Chou, Ms Ngov and Mr See established a relationship over the phone and by exchange of letters and photographs between December 2001 and November 2002.   On 12 November 2002, Mr See travelled to Cambodia to meet Ms Ngov with a view to marriage.  They had identified a wedding date before Mr See left Australia and were subsequently married on 19 November 2002.  They were together until Mr See returned to Australia on 5 January 2003.

48.     The Tribunal finds that Mr See paid for the expenses of the wedding and wedding celebration and continues to send money to Ms Ngov.  She did not pay him to enter into the marriage.  The Tribunal is satisfied, having heard Mr See’s and Ms Ngov’s evidence, that they care for one another and that the marriage is a genuine one. 

49.     Turning to the application of the character test, the Tribunal reiterates what was said by Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at para 35 that

the observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications.

The false statements made by Ms Ngov concerning her tourist visa applications, and the bogus Family Registration Book submitted with those applications, which she had also concealed from her husband and initially denied during her interview at the Australian Embassy on 19 March 2003, lead the Tribunal to conclude that she does not pass the character test because of her past and recent general conduct.

50. Having found that Ms Ngov does not pass the character test, the Tribunal must make its determination on whether or not to exercise its residual discretion in s 501(1) to decide whether or not to refuse the grant of a visa to Ms Ngov. In exercising this discretion, the Tribunal had 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.

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.

51.     With regard to the protection of the Australian community, paragraph 2.4 states:

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…

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a)       the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of offences considered by the Government to be serious include serious crimes against the Migration Act1958, which in turn include “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”..  Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors. 

52.     With regard to paragraph 2.5(b), likelihood that 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 a similar offence”.

53.     With regard to the first of the primary considerations, the Tribunal has found that Ms Ngov made false and misleading statements, made a false declaration, and submitted bogus documents in support of her tourist visa application.  Such misconduct should be regarded as “very serious”..  While Ms Ngov must accept responsibility for such misconduct, the Tribunal notes her evidence that she did this on the advice of a person who provided assistance in completing such applications, and that she now regrets her misconduct and apologises for it.

54.     The Tribunal considers that the risk of her repeating this misconduct is low.  Whilst the last occasion on which she made false statements is relatively recent – at the interview on 19 March 2003, it is apparent that she did not until then understand the seriousness of her misconduct, which is evidently commonplace in Cambodia.  While the Tribunal accepts that the refusal of a visa to Ms Ngov may deter others from similar misconduct, this is not in itself a conclusive factor.

55.     The second primary consideration is the expectations of the Australian community.  The Respondent submitted that the community would expect that a person who has made two false tourist visa applications and submitted bogus documents in support would not be granted a visa.  However, in the Tribunal’s view, the community would take into account other relevant considerations including those of a compassionate nature (Re Leha and Minister for Immigration and Multicultural and Ethnic Affairs [2000] AATA 1054).

56.     The third primary consideration is the Best Interests of the Child. The Tribunal notes 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”.

57.     The Tribunal finds that Ms Ngov has a daughter, Yun Leak, aged 11, who resides with her in Phnom Penh and is in Ms Ngov’s custody (T p129).  She has  never been to Australia and has had only limited contact with Mr See, although the Tribunal notes the evidence that she calls him “Daddy”.   Ms Ngov’s evidence is that she has sole custody of her daughter and the record of her divorce from her first husband states that their daughter must be under Ms Ngov’s care by agreement of the parties (T p116).  Whether, in law, Ms Ngov is able to take her daughter out of Cambodia without her ex-husband’s consent is not known by the Tribunal.  In any event, because the relationship between Yun Leak and Mr See is of only a relatively short duration, the Tribunal considers the interests of Yun Leak to be a neutral factor.

58.     The other relevant children are Mr See’s.  He has three children aged 23, 20 and 15.  Mr See is paying child support to his ex-wife for his 15 year old son. Mr See sees his children every few weeks.  He intimated that he would like to see them more often.  Probably because Mr See was self-represented at the hearing, no specific submission was made about the interests of Mr See’s children.  The Tribunal is prepared to assume that it would be in the best interests of at least Mr See’s youngest son that his father remains in Australia.

59.     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; the non-citizen’s business and other ties to the Australian community; genuine marriage to an Australian citizen, bearing in mind the circumstances in which 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; and the family composition of the non-citizen’s family, both in Australia and overseas.

60.     Ms Ngov’s parents and four of her seven siblings live in Cambodia.  Two of her sisters live in Australia.  Ms Ngov appears to have a stable family situation and an established dressmaking business in Phnom Penh.  Ms Ngov has never been to Australia.   Apart from Ms Ngov and sisters of his mother, all of Mr See’s family are in Australia.  He escaped from Cambodia to Thailand as a refugee and was placed in New Zealand from where he moved to Australia in 1992.  His mother was already in Australia and has now lived here for 20 years.  Mr See has stable employment, lives with his mother, aged 88, and, according to Mr Sayon, has a place in the community.  Mr See’s mother receives a pension but is otherwise reliant on Mr See for her care.

61.     As stated above, the Tribunal is satisfied that the relationship between Mr See and Ms Ngov is a genuine marital relationship.  Mr See was not aware at the time of the marriage that Ms Ngov’s character might be of concern.  He did not know of her two previous tourist visas applications until her spouse visa application was refused.  Mr See said that if his wife’s application is refused, he will consider going to Cambodia to live with her.  However, this would mean a total change in his life, he would be separated from his children and he has no other family members in Australia who could care for his elderly mother.

62. Weighing up the primary and other considerations, the Tribunal concludes that the discretion under s 501(1) to not refuse the grant of a visa should be exercised in favour of Ms Ngov. While Ms Ngov admitted to serious immigration misconduct, she is no real threat to the community who, in the circumstances, would take into account other compassionate considerations, in particular those relating to Mr See. The best interests of Mr See’s younger son also favour Mr See remaining in Australia. Finally, for Ms Ngov to live with him in Australia would ease his present burden of caring for his elderly mother and enable him to remain in the community where he has established himself over the past 10 years.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  14 and 15 January 2004
Date of Decision  9 February 2004
Representative for the Applicant               Self-represented
Representative for the Respondent          Mr I Muthalib, Solicitor