Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 96
•7 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 96
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/737
GENERAL ADMINISTRATIVE DIVISION ) Re Phillip Sorensen Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date7 February 2006
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – refusal of prospective marriage visa – visa applicant fails the character test on the grounds of her past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s immigration misconduct, stay in Australia and relationship with the applicant – necessity to consider the protection and expectations of the Australian community – found that the applicant made false and misleading statements in connection with her arrival and stay in Australia, she remained in Australia as an unlawful non-citizen for three years and worked without permission during this time, that networks in emigrant societies convey messages regarding visa requirements etc in other countries – found that the visa applicant fails the character test – found that the interests of the applicant’s children will not be prejudiced if a visa is refused – the decision under review is affirmed.
Migration Act 1958 ss 499, 501, 501(1), 501(6)(c)(ii)
Browne v Dunn (1894) 6 R 67 (HL)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re Ekinci and Civil Aviation Safety Authority [2005] AATA 789
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
7 February 2006 Professor GD Walker, Deputy President Summary
1. The visa applicant, Poonsap Wanwongka, aged 35, was born in Thailand and is a citizen of Thailand. On 1 June 2004, she applied for a subclass 300 prospective marriage visa to reside in Australia with her fiancé, the applicant Phillip Sorensen.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refused Ms Wanwongka’s visa application on the ground that she is not of good character including that she provided false and misleading information in entering the country, she remained in Australia as an illegal non-citizen and she worked in Australia without permission. That is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal in this case is whether Poonsap Wanwongka is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a prospective spouse visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) of the Migration Act 1958 (“the Act”) not to refuse the grant of a visa.
Background
4. The applicant, Phillip Sorensen, was born in Huntingdon, England, on 26 October 1959 and is aged 46. On 27 October 1985, Mr Sorensen married Amanda Glass, the marriage ending in divorce on 6 January 2004. He has three children from that marriage who reside with their mother, Ryan aged 19, Tegan aged 17 and Kirsty aged 15.
5. The visa applicant, Poonsap Wanwongka, was born in Phrae, Thailand, on 17 December 1970 and is aged 35. She is a citizen of Thailand. On 25 February 2001, Ms Wanwongka arrived in Australia on a visitor visa valid until 25 May 2001, which was granted in Los Angeles, United States of America (T p135). On entry to Australia, she stated on her incoming passenger card that her country of residence and citizenship was the United States of America and her intended length of stay in Australia was five days, for the purposes of a holiday (Exhibit R2). Ms Wanwongka did not leave Australia at the expiration of her visa, but remained as an unlawful non-citizen until 8 May 2004. Shortly after arriving in Australia, she commenced work in contravention of her visa conditions.
6. On 21 December 2002, the applicant and visa applicant met at a party. On 1 January 2003, Mr Sorensen and Ms Wanwongka commenced their relationship (T p68), and on 18 January 2003 they commenced living together. Between 21 January 2003 and 24 February 2003, they opened a number of joint bank accounts and arranged for both the electricity and telephone accounts to be issued in joint names (T pp69-70).
7. On 6 January 2004, Mr Sorensen’s divorce became absolute (T p52) and on 29 April 2004 they registered their intention to be married at the Registry of Births Deaths and Marriages, Chippendale, on 12 August 2004 (T15 p57). On 8 May 2004, Ms Wanwongka, accompanied by Mr Sorensen (T p118), returned to Thailand. At the time of her departure, it was noted by immigration officials at Sydney international airport that she departing as an “overstayer” with no passport or current visa and that she “did some baby sitting work before meeting an Australian citizen” (T p121).
8. On 1 June 2004, Ms Wanwongka lodged an application for a subclass 300 prospective marriage visa, based on her intended marriage with Mr Sorensen, at the Australian embassy in Bangkok (T20 p72). At Part F – Health and Character, to the question “Have you ever been given permission by the Department of Immigration and Multicultural and Indigenous Affairs to work in Australia?” she ticked “No”. On 22 June 2004, Ms Wanwongka was interviewed by an immigration official at the Australian Embassy with the assistance of an interpreter (T38 p143). She told the interviewer that before coming to Australia she had met a man named Dum who had asked her if she wanted to work in Sydney. He told her that she could get a visitor visa, look for work and then change this to a student visa so that she could work legally. She agreed to pay Dum 25,000 baht. She did not complete any visa application or sign any documentation. When she received her visa, she paid Dum 25,000 baht for the visa and a further 25,000 baht for her air tickets and accommodation. She said she travelled to Sydney alone.
9. In Chinatown she found an advertisement for a babysitter for a Chinese family. She said the employer checked her visitor visa and saw that she could not work, but hired her anyway. She worked four days per week earning approximately $200 per week. She said that she lost her passport about one year after arriving in Australia but was advised by some Thai friends not to do anything about it.
10. The applicant told the interviewer that she met her sponsor in December 2001 and they commenced a relationship about one week later. Some weeks after meeting, she told him that her visa had expired. He told her that he was separated with three children who lived with their mother. He did not support the children financially and he had made an agreement with his father-in-law that he would support the children. She said that her sponsor had asked her to move in with him but she had hesitated and they did not move in together until March 2002 and that he paid all their expenses including rent and electricity. She continued to work until about three months after they commenced living together when her sponsor asked her to stop working. In December 2002, her sponsor put money into a bank account for her use and gave her an allowance every week. She said she also sent 2,000 to 3,000 baht per month to her family in Thailand. The applicant said that she and her sponsor consulted a lawyer who told her that she could not apply for a spouse visa onshore, but they did not leave Australia until 8 May 2004 because they had to save the money and in the meantime the sponsor’s mother became ill and they could not leave her. She said that the sponsor came to Thailand with her to meet her family and arrange for her visa to return to Australia. They planned to marry in Sydney on 12 August 2004 and intended to live in Tasmania with the sponsor’s mother. She also told the interview that she did not intend to have children with her sponsor; she was over 30 and he already had three children and she did not want to look after the children, and her sponsor had agreed with this (T pp143-145).
11. By letter dated 23 July 2004, Ms Wanwongka was requested to attend a second interview on 5 August 2004 (T p115). On 5 August 2004, Ms Wanwongka was interviewed by an immigration official at the Australian Embassy with the assistance of an interpreter (T p116). She stated at that interview that before she came to Australia she studied part-time while working full-time to earn sufficient money to live and study; that approximately three or four months before coming to Australia she was approached by a unknown person who offered to assist her to obtain a visa to come to Australia (named “Dum” or “Dong”) but not work in Australia, and that it had been her intention to come here to work for two to three years; the cost of the visa was 30,000 baht and airfares approximately 5,000 baht, and that she borrowed this money from a friend; she came to Australia via Hong Kong, and not the United States, and could not remember the name of the person who escorted her; and that the only work she performed in Australia was babysitting for a Chinese family from February 2001 until December 2002, earning approximately $200 to $250 per week, from which she paid rent and living expenses. When asked when she moved in with her sponsor, she could not at first recall but then stated it was in April 2003. She had told her sponsor that she could not return to Thailand because she had not saved sufficient money, and that she had lost her passport around September or October 2002 (T27 p116-117).
12. On 23 March 2005, an officer of the character assessment unit of DIMIA advised Ms Wanwongka that she was considering refusing her prospective spouse visa on the ground that she failed to pass the character test in s 501(6)(c)(ii) of the Act and inviting her to comment (T p126). By letter dated 25 March 2005, Ms Wanwongka and Mr Sorensen responded to the department. She stated that she did not know how her citizenship was listed as United States of America because her passport clearly stated “Thai” and that it could only be because her written English was poor at that time, and that to her “recollection the man that organised my visa for me had filled out all the forms for me. I would expect any obvious errors such as you have stated would have been picked up at arrivals immigration counter Sydney”.
13. Her intention was to stay as a tourist and then convert her visa to a student visa once she found a suitable course to study and accommodation. She said she travelled on her own via Hong Kong. She did know that her visa did not allow her to work but when she found out the cost of student fees and the cost of living, she knew that her money would not last. She only had enough money to live and not enough to study and was stuck in that situation until she met her fiancé. She said that was not escorted to Australia as a “worker” and that she had never worked as a prostitute or escort in the past or present and that she found those questions “very discomforting as I come from a respected family”.
14. She stated that it was never her intention to provide incorrect or misleading information to the department and that everything was done for her by the person who she believed was an “authentic migration agent” and that it was her mistake to believe that. She said that she worked because she had to survive and that it was not really her understanding of work, because her understanding was “work was a job either part time or full time for which you are paid a set salary or wage every week and is for a registered business”. She asked that the genuine nature of her relationship with her sponsor be taken into account.
15. Mr Sorensen submitted a statement also dated 25 March 2005 in which he stated that the visa applicant comes from a well-respected family with high standing in the community and that all the family “have been educated to university level”. He also said that the departmental officials in Bangkok failed to carry out their duties in a lawful manner when interviewing the visa applicant and that she was upset and harassed by the proceedings. He said that the visa applicant was telling the truth and that she “made a mistake by accepting her initial entry visa to Australia from a person who has proven to be a sham”. He submitted that the applicant’s situation “when I met her was of virtual slavery performing child minding services for little or no compensation” and that he tried to do the “Australian thing” by assisting her. He concluded that she should be given the opportunity to better her life as a valued Australian resident and his partner (T pp132-133).
16. On 4 May 2005, Mr Sorensen returned to Australia.
17. On 16 May 2005, having considered the submissions lodged on behalf of Ms Wanwongka and the responses given at her two interviews with immigration officials, a delegate of the respondent decided to refuse the grant of a visa to Ms Wanwongka on the ground that she did not pass the character test because of her past and present general conduct including providing false and misleading information to the department including her reasons for travelling to Australia and her length of stay (T p10), remaining in Australia as an unlawful non-citizen from 25 May 2001 to 8 May 2004, and working in Australia without permission to do, and having decided to exercise his discretion under s 501(1) of the Act to refuse the grant of a visa (T pp7-14). This decision was notified to the visa applicant under cover of letter dated 17 May 2005 (T2 p5). On 9 June 2005, Mr Sorensen lodged an application for a review of that decision by the tribunal (T p3).
18. On 15 July 2005, Mr Sorensen travelled to Thailand, where, on 18 July 2005, he and Ms Wanwongka were married. He returned to Australia on 31 July 2005.
19. At the hearing, the applicant was represented by Nicholas Poynder, counsel, instructed by Janice Vu & Associates, solicitors, and the respondent was represented by Tigiilagi Eteuati, solicitor, Clayton Utz lawyers. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. Mr Sorenson gave oral evidence in person and Ms Wanwongka gave evidence by telephone from Thailand.
Relevant Law and Policy
20. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
21. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
22. 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.
Evidence
23. Mr Sorensen gave oral evidence. Ms Wanwongka gave oral evidence by telephone. A Thai interpreter was sworn in to assist her with the giving of her evidence.
24. Before the hearing, statutory declarations were filed on behalf of the applicant by Saengjan Kunanalai of 20 August 2005 and Gorgina Keramea of 24 August 2005, together with copies of Ms Wanwongka’s university results from the Ramkhamhaeng University, work certificate from Roempasatchagorn Store, Bangkapi, Bangkok and Udom-Sook Mansion Co Ltd, and two certificates from Piriya Computer School.
25. On the character issue and on the discretionary factors of community protection and expectations, the main evidence is contained in the T documents (Exhibit R1) and the evidence of the visa applicant, Ms Wanwongka. Her evidence consisted of her oral evidence and her written statement dated 23 September 2005, which she adopted at the hearing (Exhibit A4), in the notes of two interviews with departmental officials, the first on 22 June 2004 (T pp143-145), the second on 5 August 2004 (T pp149-150) and in her written response dated 25 March 2005 to the department’s notice of intention to refuse a visa (T pp129-132). That response also contains a statement by the review applicant, Mr Sorensen (T pp132-133), which is relevant to the character and discretionary issues mentioned above.
26. It is difficult to summarise Ms Wanwongka’s evidence in chronological order because she has at various times given, or is alleged to have given, different and inconsistent versions of material facts. The most convenient and useful approach may therefore be to consider separately the evidence in relation to each of the main material facts.
The visitor visa
27. The visa applicant’s evidence on this point has been reasonably consistent, although raising other difficulties. She states that she obtained her subclass 676 visitor (short stay) visa through a man named Dum or Dong, who sold clothes at the Patunam market in Bangkok where she worked while she was a part-time student at Ramkhamhaeng (open) University (T pp134, 149). Dum, who was not previously known to her, approached her and asked her if she wanted to work in Sydney. He told her that she could get a tourist visa, seek work and change to a student visa to work legally. He said he could help her to apply for a visa. She paid him 30,000 baht for the visa (T p149, Exhibit A4, para 12), or on another version 25,000 baht (T p143). She also paid him 25,000 baht for the air tickets and three nights’ hotel accommodation (Exhibit A4, para 12, T p143), or on another version 5,000 baht (T pp143, 149). He asked only for her passport, and not for any other information, and she did not complete the visa application or sign it.
28. At that time she had savings amounting to about 10,000 baht, and borrowed 30,000 baht from a friend. She eventually repaid that loan by sending money to her family, who transferred it to the friend, the loan being repaid by the time she met Mr Sorensen (T pp149-150). On another version Mr Sorensen paid the outstanding balance of the loan for her (T p150).
29. She obtained her Thai passport through the passport office in Bangkok, but made no attempt to approach the Australian embassy to seek a visa, even though she was living in Bangkok at the time. No explanation was offered for that course of action, yet some explanation is called for as to why a person from a family all the members of which had been educated to university level (T p132), and who herself had completed eight years of part-time university education, would apply for a visa through an unknown clothing seller from a street market. In emigrant societies such as Thailand, there are said to be strong communication networks conveying information about green cards, work permits, visas and other requirements for settling in the usual host countries (see Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061 para 37; P. Winters, A de Janvry, E. Sadoulet, “Family and Community Networks in Mexico – US Migration”, No. 99-12, Working Paper Series in Agricultural and Resource Economics, University of New England, Armidale, N.S.W., August 1999, 14-16; I. Light, P. Bachu, S. Karageorgis, “Immigrant Networks and Entrepreneurship”, in I. Light, P. Bachu eds, Immigration and Entrepreneurship, Transaction Books, New Brunswick 1993). Quite apart from that, as an educated young woman of 29 with business experience, Ms Wanwongka must have been more aware than most people of immigration requirements and practices, including the existence of people smuggling. That she chose to apply for a visa in that irregular manner rather than directly approaching the embassy suggests that she was aware that her application was not proceeding through the proper and lawful channels.
30. Ms Wanwongka did not dispute the odd fact that the visa was issued in Los Angeles, USA. When invited at the hearing to explain that anomaly, she replied only that “I am Thai and my passport also is Thai”, an unresponsive and evasive answer (transcript 18 January 2006, p26).
Her travel to Australia
31. It is not disputed that Ms Wanwongka arrived in Australia on 25 February 2001 on a Cathay Pacific flight from Hong Kong. There was a conflict in the evidence, however, on the question whether she had come to Australia from, or by way of, the United States and whether she had been escorted for all or part of the journey. In her statement adopted at the hearing, she stated that: “I went to the Bangkok airport on my own. I flew first to Hong Kong”. She thus neither admitted nor denied that she had been escorted on the flight itself. In her first interview she told the departmental officer that she had travelled to Sydney by herself (T p143), but at the second interview said she could not remember the name of the person who escorted her to Australia (T p150).
32. In her response dated 25 March 2005 to the notice of intention to refuse a visa, the visa applicant wrote:
Yes I did travel to Australia on my own. I caught a Cathay Pacific flight to Hong Kong, which connected with another Cathay Pacific flight to Sydney. I received instructions from the Cathay staff on the plane when we arrived in Hong Kong as to how to connect with my next flight as did other passenger (T p130).
33. On 20 July 2004, a departmental officer, Paul Finch, made the following file note:
PA [Ms Wanwongka] was one of 5 women who were escorted to A/a from LAX [Los Angeles international airport] in 2000 and 2001. Two of the 5 were located working in brothels and another was an overstayer located at a residential address. Given the fact that the PA was escorted and a number of other women similarly escorted were found working unlawfully in brothels, it is reasonable to conclude the PA was probably also working in a brothel prior to meeting her SP. In any event, it seems improbable that she was not working prior to meeting the SP given the period of time that elapsed between her arrival in A/a and when she and the SP claim to have met. None of the casenotes I have read have drawn this information to the PA about the sex workers who used the same modus operandi … or asked her to comment on the organised nature of her travel. Aside from those issues, this case is no longer of Compliance interest as the escort was identified and her visa cancelled and the use of LAX as the LPE for Thai sex workers ceased with her visa cancellation (T pp150-151).
34. The briefing papers to the Minister’s delegate contain further information relevant to this issue:
Departmental records and Incoming Passenger Cards support Ms WANWONGKA’s advice that she was escorted to Australia. On Ms WANWONGKA’s flight, there was only one other Thai national. This passenger cleared immigration within 25 seconds of Ms WANWONGKA. Both of their passenger cards have been notated by the same Australian Customs Service Officer who spoke to both Ms WANWONGKA and the other Thai national at exactly 12:24 pm. Both Ms WANWONGKA and the other Thai national stated on their passenger cards that they were staying at the Holiday Inn. The other Thai national is a suspected people smuggler who has previously facilitated Visitor visas and travel for Thai nationals through Los Angeles, the location where Ms WANWONGKA’s visa was issued. Some of these women have been located working in the sex industry in Australia (T p10).
35. The other Thai woman’s Incoming Passenger Card was admitted in evidence as Exhibit A6.
36. At this stage I should make it clear that none of the other evidence supports the hypothesis that Ms Wanwongka was at any time engaged in prostitution. The departmental records themselves only state that some of the women referred to were so involved.
37. At the hearing Ms Wanwongka was not specifically asked to resolve the conflict of evidence as regards her being escorted to Australia. She was, however, invited to comment on the fact that her visa was issued in Los Angeles, in the context of the suggestion that she had come to Australia from, or via, the United States. She did not at first reply and when then asked if she had ever been to the United States, she replied “No, I never been to America. If I have been to America, why do I bother to come to Australia?”, a rather enigmatic qualification (transcript p26).
The Incoming Passenger Card and the other Thai woman
38. It was not disputed that Ms Wanwongka had signed an Incoming Passenger Card that contained several handwritten false statements (T p42). It states her country of residence as “U.S.A.” and her nationality as shown in her passport also as “U.S.A.” It gives her intended length of stay as five days, for the purpose of a “holiday”. She gives the Holiday Inn as her address, but it is not clear whether she stayed there or not. Her evidence was that she stayed at a hotel near the airport (T p144, Exhibit A4, para 22), a $10 cab ride away, the name of which she did not recall, but she did not think it was the Holiday Inn (Exhibit A4, para 54). There is in fact a Holiday Inn in O’Riordan Street, Mascot, near the airport.
39. The notice of intention to refuse the visa offered the visa applicant the opportunity to comment on the claim that she had provided false and misleading statements to the department on her Incoming Passenger Card (T p127). In her written response to the notice, Ms Wanwongka wrote:
I could have ticked an incorrect box on the Incoming Passenger Card this I could accept as my written English at the time was poor however to my recollection the man that organized my visa for me had filled out all the forms for me (T p130, emphasis added).
40. In her statement tendered at the hearing, Ms Wanwongka advanced a very different narrative. She stated that while at the transit area at Hong Kong Airport, she met a Thai woman with whom she had a short conversation. Ms Wanwongka said that she was Thai and that she was going to Australia to see her friends. The other woman then said she also was going to Australia to visit friends and had been to Sydney on her first visit to Australia. On the flight itself the two sat in different parts of the passenger cabin.
41. When she was approaching the immigration counter at Sydney Airport, she saw the Thai woman again, who asked her if she had filled in her Incoming Passenger Card. When Ms Wanwongka said she had done nothing about it, the woman said she could help her to fill in the form for her, which she did. She did not ask Ms Wanwongka any questions, but simply filled in the form for her and checked her passport for her name.
42. At the hearing she said at first that the woman “checked it over for me”, but when asked to clarify, explained that, “She looked at it and she also – she looked at it, what it is all about, and she also filled in the form [for] me and she told me where to sign it” (transcript p20).
43. The other Thai woman then spoke to the immigration officer in English. Ms Wanwongka did not remember what was said but recalled that she was not asked any questions. After they had passed through customs, the Thai woman said she had continue to another State and needed to obtain a ticket. She went upstairs and Ms Wanwongka did not see her after that (Exhibit A4, paras 18-21). Ms Wanwongka did not say whether or not the woman had ever given her name.
44. There are several points to notice about that evidence:
·There was no need for anyone to check the visa applicant’s passport for her name, because her full name, passport number and flight number were pre-printed, by a computer or some other machine, on the Incoming Passenger Card. Further, as it happens, the names, passport number and flight number of the other Thai woman who passed through immigration 25 seconds before Ms Wanwongka are also pre-printed on her Incoming Passenger Card in exactly the same way (Exhibit A6).
·At the hearing, when asked whether she noticed the abbreviation “U.S.A.” on the card, she replied that she “didn’t look at in detail”. When then asked whether she noticed anything about the card, she answered evasively, “I’m not sure”.
·The visa applicant, until her written statement dated 23 September 2005, had never previously mentioned meeting a Thai woman who completed her Incoming Passenger Card for her. Her explanation for the false information had previously been that she might have ticked the wrong box, an impossible proposition as the false information was handwritten in block capitals on the card. At the hearing Ms Wanwongka admitted that she had not previously mentioned the Thai woman but offered no explanation for that fact.
·As Mr Eteuati pointed out on behalf of the respondent, while the hand printing on the Incoming Passenger Cards signed by the two women is similar, it more closely resembles Ms Wanwongka’s printed signature than the other woman’s cursive signature. Mr Poynder submitted that the similarity in the printing suggested that the other Thai woman had indeed completed the visa applicant’s card, while Mr Eteuati argued that it was at least as likely, or more so, that Ms Wanwongka had completed both cards. Another possibility, of course, is that a third party completed both cards. The fact that some of the information on both cards was pre-printed by machine in precisely the same way also points to a common source, suggesting that they were both part of some kind of organised group. It was not suggested that the immigration authorities issued partly pre-printed Incoming Passenger Cards.
·The respondent pointed out that the entry on the card stating her nationality as shown in her passport as “U.S.A.” was an obvious error, as she was travelling on a Thai passport, and could not have been intended to deceive. It almost certainly was an error by whoever completed the form, but that still leaves the other false information, including the statement that her country of residence was the USA. It also leaves the question of why the USA was mentioned at all.
45. The one clear conclusion one can reach from that evidence is that Ms Wanwongka made false and misleading statements in her Incoming Passenger Card, or submitted the card with such statements in it, and has offered a false and misleading explanation of how she came to do so, either to the department or to the tribunal or both.
46. The evidence also suggests that Ms Wanwongka did come to Australia escorted or as part of some organised operation, as she implied in her second interview. In her response to the department’s notice, she strongly denied that she had been escorted (T p131). In the written statement that she adopted at the hearing, she does not expressly claim to have come unescorted, but does imply it, stating that she went to Bangkok Airport on her own and met the Thai woman by chance in the Hong Kong transit lounge, by implication for the first time (Exhibit A4, para 18). She also states that she had not met her before travelling to Australia (para 56).
How long did Ms Wanwongka intend to stay in Australia and for what purpose?
47. In her first interview, Ms Wanwongka said that when Dum had approached her in Bangkok, he had asked her if she wished to work in Sydney. He told her that she could obtain a tourist visa, seek work and change to a student visa to work legally. After discussing it with her family, she accepted his proposal. The implication was that her main intention was to seek a student visa as a means of working legally, but in the meantime presumably to work illegally.
48. She said she did not apply for a student visa in the first place because she had been told it would be cheaper to travel to Australia on a visitor visa and later apply to substitute a student visa (transcript p19). But if cost were a decisive factor, it is hard to see why she chose to pay 30,000 baht to Dum to obtain the visitor visa when she could have applied at the embassy herself for considerably less.
49. The notes of her second interview record her as stating that she planned to go to Australia for about two to three years to work (T p149). In her response letter she denied stating her intention in that way (T p131) although she did not expressly deny that it was in fact her intention. In her written statement she said that in about 2000 she started to think about going overseas to study and thought Australia would be a good place to go to learn English and do further study. The student courses advertised in Thailand for Australia were, however, “very expensive”. She thought that if she came to Australia she could find a cheaper course. On making enquiries after her arrival, however, she learned that the courses cost over $3,000 (presumably per year) and that sum exceeded her budget (Exhibit A4, paras 5-8). She was thus unable to convert her visitor visa into a student visa before the visitor visa expired. “I had not expected this problem to occur. I then decided to remain in Australia to improve myself, to learn English” (paras 45-46).
50. Mr Poynder submitted that Ms Wanwongka had been misled in Bangkok about the cost of education programs in Australia, probably by Dum, but her own evidence was that she knew about the cost involved before she left for Australia.
51. It appears that she did not spend much time investigating educational opportunities or considering her position. As soon as she reached the conclusion that conversion to a student visa (though admittedly lawful) was impracticable, she decided to take a position as nanny with Mrs Saengjan Kunanalai; “I knew some Thai friends in Sydney whom I could stay with. Also I was able to stay with a Thai family of Saengjan Kunanalai who needed on-going help with childcare because she had young children” (paras 9-10).
52. According to her statement, however, she learned about Mrs Kunanalai’s vacancy for a nanny the day after she arrived in Sydney and was introduced to her the following day, 27 February (paras 23-25). That is confirmed by Mrs Kunanalai’s statutory declaration dated 20 August 2005 (Exhibit A5) in which she recalls receiving a telephone call from Ms Wanwongka on 27 February and meeting her that evening. Ms Wanwongka moved into the family household on the morning of 28 February.
53. That timetable is inconsistent with Ms Wanwongka’s having undertaken any serious investigation of available courses in Australia or giving any prolonged consideration to possible courses of action. At no time did she attempt to extend her visitor visa. Nor did she consider returning to Thailand, although she held a return ticket (Exhibit A4, para 17). The evidence thus strongly suggests that her intention from the outset was to remain in Australia for an extended period, with or without a visa. The statement in her Incoming Passenger Card that she intended to remain five days was plainly false. In her statement she maintained that when she gave her main reason for coming to Australia as being “holiday”, that was partly correct as she did want to come to Australia to go overseas and travel (Exhibit A4, para 54). That is not credible, given that she appears to have spent no time sightseeing and made an appointment for a job interview with Mrs Kunanalai on the day after her arrival (para 24).
Events in the days following her arrival
54. In the statement upon which she relied at the hearing, Ms Wanwongka said that she had stayed one night at the hotel near the airport. She travelled there by taxi at a cost of $10. On the following morning a friend, who she knew as “Da”, came to collect her (Da’s real name has never been given). Da then took Ms Wanwongka to Chinatown to stop by for food. “While at Chinatown ‘Da’ met a friend who said she knew another woman who needed someone to care for her baby as the woman was going to have another baby soon. This was the family of Saengjan Kunanalai”. Da telephoned the family on her behalf and made an appointment for her to meet them the following day. That night she stayed at Da’s apartment. The next day (27 February) Da took her to meet the Kunanalai family, who accepted her. She then moved her things to their house.
55. That account is consistent with Mrs Kunanalai’s statutory declaration, except that she says the telephone call came from Ms Wanwongka, not from Da. She adds that Ms Wanwongka stayed with them for eight weeks and then moved in with some “student friends”. After that she came to stay as a babysitter at weekends and sometimes for a week or so.
56. At the hearing Ms Wanwongka said that she had stayed at the hotel only for one night and had travelled by train to Chinatown, and had seen an advertisement for a babysitter in a Thai grocery store in Thaitown (which adjoins Chinatown). That variant was partly consistent with the information she supplied at her first interview, except that she had said that she had stayed at the hotel for three days, not one. Then she had taken a train to Chinatown to seek work and cheaper accommodation. She saw an advertisement in a Thai grocery shop for a Thai babysitter. In re-examination, however, she said that she had not met Mrs Kunanalai as a result of reading an advertisement.
57. She telephoned the employer, who checked Ms Wanwongka’s visa and realised she was on a tourist visa and not allowed to work, but employed her anyway. She started work a week later.
58. In her second interview, however, Ms Wanwongka is recorded as saying that she only worked as a babysitter for Chinese families, commencing in February 2001 and until December 2002. At the hearing she said she stayed with the family of the lady who was going to have the baby until she moved in with Mr Sorensen in March 2003 (transcript p21).
59. The facts surrounding the visa applicant’s first few days in Australia in February 2001 may not be crucial, but the discrepancies between the various versions are telling. This was an important week in her life. She had travelled overseas for the first time and had arrived in a strange country where she had immediately, she says, been confronted with difficult choices and a stark predicament. The variations between the different accounts are too substantial to be the result of inadvertent error. Not only must one or more of the versions she has given been false, and probably knowingly so, but the effect must be to cast further doubt on the whole of her evidence.
Work history
60. In her statement adopted at the hearing, Ms Wanwongka said that when she began working for the Kunanalai family she did not think that she would be paid any money and was happy to take care of the children in return for a place to stay. She stayed with them initially for six to eight weeks and later helped them with childcare on a casual basis, sometimes staying at their house. She also did casual babysitting and cleaning work with other families as well from February 2001 until about April 2003 when she moved in permanently with Mr Sorensen (Exhibit A4, paras 26-27, 47-48). “I worked as a babysitter and cleaner from February 2001 to April 2003 because I wanted to improve my life”, she said. “I could have returned to Thailand but I did not feel that I had achieved much in Thailand with my life” (para 49).
61. At the hearing she said that she stayed with the lady who had the child on 2 March 2001 (Mrs Kunanalai) and who needed help, in exchange for accommodation and food. She said that she stayed there until she moved in with Mr Sorensen in March 2003, which is inconsistent with Mrs Kunanalai’s statutory declaration and her own statement. When it was put to her that she had previously said she had been paid for her work, she replied that she had only “been given some money to buy a few things”, and that she had come to Australia for education, not for work.
62. Neither in her statement nor in her oral evidence did she mention receiving any particular amount or amounts of money. Asked how she obtained the $1,000 that she deposited in the joint account at St George Bank with Mr Sorensen in December 2002, she explained that she had kept intact the $500 that she had brought with her when she arrived from Thailand and “kept a little bit for years which helped to make up the $1,000”. It hardly seems likely that she could have kept the whole of her original $500 without spending any of it, and accumulated $1,000, if she had not been paid. Nor did she explain how she managed to send $70 to $100 a month to her family in Thailand. She has never mentioned paying any income tax.
63. More plausible was the account recorded in the minutes of her first interview, in which she is reported as saying that she worked four days a week and was paid $200 a week. After they opened the joint account with deposits of $1,000, Ms Wanwongka put in another $2,000 and Mr Sorensen deposited $500 to $1,000 per month. At the hearing she denied depositing the sum of $2,000, saying “Where am I going to get those money to put in the account?”. That rhetorical question has a fairly ready answer.
64. In her second interview she said that she was paid about $40 to $50 per day, working five days a week and therefore usually earning $200 to $250 per week. Rent would cost her about $100 per week, leaving her with approximately $100 to $150 per week for living expenses (T p150).
65. In her response to the notice of intention to refuse the visa, she said that she undertook babysitting and childminding to cover her accommodation costs and “was given sometimes 100 to 200 dollar. This is what I stated at my interview. I was also in a catch-22 with only enough money to survive and not enough to change by visa” (T p130).
66. Ms Wanwongka also made it clear in her response that she was using a rather restricted definition of “work”:
As to my work in Australia, I had to survive and it was not what I thought was work[. M]y understanding of work was a job either part time or full time for which you are paid a set salary or wage every week and is for a registered business (T p131).
67. At the hearing, consistently with that self-serving approach, she would not be drawn on the subject of how much she had been paid in any of her positions.
68. There was some evidence to suggest that Ms Wanwongka had also worked as a waitress in Mr Sorensen’s restaurant, the Rom Thai. On the evidence as a whole, however, I am satisfied that such was not the case. Her role in relation to the restaurant was confined to occasionally assisting Mr Sorensen with food deliveries to the restaurant on a voluntary basis.
Her decision to stay
69. At times Ms Wanwongka has sought to give the impression that her decision to stay and work in Australia without a visa was forced on her by circumstances and that she had no effective choice in the matter. In her letter of response dated 25 March 2005, she wrote that, “I was also in a catch-22 with only enough money to survive and not enough to change my visa. I was stuck in this situation until I met my fiancé” (T p130). “As to my “work” in Australia, I had to survive …” (T p131). In her second interview she related how she had told Mr Sorensen when she moved in with him that she could not return to Thailand because she had not saved sufficient money (T p150).
70. At other times, however, she has characterised the move as more a matter of conscious choice. In her statement she wrote, “I felt that I should make an effort to try to learn English or to learn something to improve my life … I stayed in Sydney without a visa” (Exhibit A4, paras 9, 11). “I worked as a babysitter and cleaner from February 2001 to April 2003 because I wanted to improve my life. I could have returned to Thailand …” (para 49). As she had a return ticket, she could easily have done so (para 17). In her first interview she said that after her visa expired she did not want to return to Thailand. She wanted to work and save money for a while before leaving Australia (T p144).
71. At that interview she also referred to the loss of her passport. She said she had left it at the apartment (presumably the apartment she was sharing with some other Thai women) while she went to work. She “did not keep it very well” as her Australian visa had already expired. She found out that her passport was lost almost a year after her visa expired. She did not report the loss to the police or anyone else, saying that some Thais advised her not to do anything (T p144). People do lose passports through inadvertence or theft, but her explanation for an event as serious as losing one’s passport while on a short term visa in a foreign country known to take migration law seriously is vague and unconvincing. No longer having her passport could in her case be quite convenient, if it eliminated evidence of, for example, travel to or through the United States.
72. It is thus clear that there was nothing to prevent her from returning to Thailand and she had a return ticket to enable her to do so. She did not come as a genuine visitor, let alone with the intention of staying only five days, nor did she seriously intend to study in Australia. She chose to remain in Australia without a visa because she “wanted to improve my life”, probably meaning that she wanted to work and save money. She departed only because she had been advised by a lawyer in 2003 that she had to go offshore in order to apply for a spouse visa (T p145), delaying her departure until May 2004 so that Mr Sorensen could first complete some business projects and because his mother was sick.
Relationship with Mr Sorensen
73. The respondent did not argue that the marriage between Ms Wanwongka and Mr Sorensen was not genuine and the evidence relating to their relationship was uncontroverted.
74. The two met at a Christmas party in December 2002 and she moved in with him at his Hurstville apartment a month later. When Ms Wanwongka met Mr Sorensen she was living with the Thai friend she knew as “Da”. (Although by then she and Da must have been on friendly and familiar terms, Ms Wanwongka still does not give Da’s real name.) By April 2003, she was installed with Mr Sorensen permanently. He asked her not to work any more and said he would support her financially.
75. At the time they met in December 2002, Ms Wanwongka had been living unlawfully in Australia without a visa for about seven months, but she did not inform Mr Sorensen of that fact. He said he did not learn that she had neither visa nor passport until about April 2003 when he had begun to study the necessary visa application forms. It was at about that time that the relationship became intimate.
76. Having received legal advice that she needed to go offshore before a prospective spouse visa application could be lodged, she returned to Thailand in May 2004. Mr Sorensen came to live with her in Thailand on 5 May 2004 and remained for about a year, until 4 May 2005. During that time they stayed at the family home in Phrae and lived as husband and wife. He returned again to Thailand on 15 July for the purposes of the wedding on 18 July 2005 and departed for Australia on 30 July 2005.
77. Ms Wanwongka has said that she does not wish to have children with her sponsor, as she is over 30 and Mr Sorensen already has three children. She does not want to look after his children, and Mr Sorensen agrees with that position (T p145).
78. Mr Sorensen says that Ms Wanwongka gets on well with his children and that they accept the relationship, though they would strongly prefer that their father continue to live in Australia. The children of a first marriage commonly have mixed feelings about their father’s re-marriage, however, and it would not be surprising if that were true in this case. None of the children has come forward to give evidence of any kind in these proceedings. The evidence as a whole provides no reason for doubting Mr Sorensen’s commitment to the marriage or that the relationship is genuine.
Other aspects of the evidence
79. Mr Poynder submitted that in cases where there was a conflict between the records of the two interviews and Ms Wanwongka’s oral evidence, the tribunal should accept her evidence, as she had denied the department’s version under cross-examination. That might be appropriate were it not for the fact that she was an evasive witness given to advancing multiple versions of the facts and making improbable or impossible assertions. One example was her previously unmentioned account of how the unnamed Thai woman appeared by the merest chance, completed Ms Wanwongka’s Incoming Passenger Card with gratuitously false information apparently drawn from her own imagination, and then vanished never to be seen or heard from again. That is an obvious recent invention that strains human credulity beyond acceptable limits.
80. Mr Poynder also argued that the departmental officers who wrote the various summaries and file notes should have been called as witnesses. The respondent’s failure to adduce oral evidence gave rise, Mr Poynder submitted, to an adverse inference under Jones v Dunkel. As he rightly conceded, those summaries and notes would be admissible as truth of the matters of fact stated in them as business records under s 69 of the Evidence Act 1995 (Cth) even if the rules of evidence applied to proceedings in this tribunal, which they do not. Nevertheless, he said the authors should have been called as a matter of procedural fairness.
81. I do not think that submission can be sustained. Since the 2005 amendments to the Administrative Appeals Tribunal Act 1975 (Cth), the tribunal is under an express and unique statutory obligation to provide “a mechanism of review that is fair, just, economical, informal and quick” (s 2A). Even before those amendments, it was the tribunal’s established practice to treat departmental records in the T documents as prima facie evidence of the facts asserted in them. Applicants who dispute the accuracy or implications of such records have sometimes sought and obtained summonses directed to departmental officers to give oral evidence (eg, Re Ekinci and Civil Aviation Safety Authority [2005] AATA 789). Given that practice and the now explicit obligation in s 2A, I do not think the respondent’s failure to call any officer to give oral evidence, or to explain such officer’s absence, gives rise to a Jones v Dunkel inference. To decide otherwise would greatly lengthen the Tribunal’s review process in the future.
82. Mr Poynder also submitted that the tribunal should not draw any inference that Ms Wanwongka was escorted to Australia, whether by the other Thai woman or anyone else. The matter had not been put to her in cross-examination and she had elsewhere denied it. I agree that, as the point was not put to Ms Wanwongka, it would be inappropriate to draw any such inference in light of the principle in Browne v Dunn (1894) 6 R 67 (HL).
Application of the Law and Findings of Fact
83. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Ms Wanwongka 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).
84. As Senior Member Ettinger has said, “There must be honesty and integrity amongst visa applicants so that they are treated fairly and that their claims are assessed by the same standards” (Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246, para 17).
85. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Ms Wanwongka does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
86. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of 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 indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
87. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
88. On the basis of all the evidence I am satisfied that Ms Wanwongka came to Australia in 2001 as a knowing participant in some form of people smuggling operation. I make no finding as to whether she was actually escorted or not. She may well have been unaware of the contents of her visitor visa application form, but chose to remain unaware because it suited her purposes. Whether she completed her Incoming Passenger Card personally or not, she presented it to immigration officers knowing that it contained false information about material matters including her country of residence, occupation, purpose of visit and intended length of stay. She made no attempt to extend her visitor visa and in any case, was not a genuine visitor - at no time did she intend to visit Australia and return to Thailand. Although lawfully she could have applied to convert her visitor visa to a student visa, that was not her primary purpose as she made no serious attempt to investigate education opportunities but sought employment immediately on arrival. Her intention was to stay and work in Australia, whether lawfully or not.
89. Although she had the means to return to Thailand, she chose to remain in Australia without a visa for three years. From December 2001 to April 2003, she worked unlawfully, in exchange for money payments and in some instances for board and lodging as well. Her money income from her babysitting and cleaning activities was from $200 to $250 a week. There is no evidence to show that she paid income tax. She left Australia in May 2004 only because she had received legal advice that she needed to be offshore if Mr Sorensen were to apply for a spouse visa. She made no attempt to regularise her stay in Australia until she was in her relationship with Mr Sorensen. When she met him she did not tell him that she had been unlawfully in Australia for seven months and did not make him aware of her situation until the relationship had developed to the point to where he was considering making a prospective spouse visa application. She repeatedly gave false or misleading information to departmental officers and attempted to mislead the tribunal with false or misleading evidence at the hearing. Apart from her marriage and her intermittent care for Mr Sorensen’s children, there is no evidence of recent good conduct.
90. I therefore conclude that Ms Wanwongka fails the character test by reason of her past and present general conduct.
91. Having decided that Ms Wanwongka does not pass the character test by reason of her misconduct and abuse of Australia’s migration system, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Ms Wanwongka. In exercising this discretion, the Tribunal has 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.
92. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
93. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
94. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
95. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. I find that Ms Wanwongka infringed ss 234(1)(b) and (c) in connection with her Incoming Passenger Card and that she also committed multiple breaches of s 234(1)(b) by making materially false or misleading statements to departmental officers and to this tribunal. Breaches of those paragraphs are punishable by 10 years imprisonment or a fine of 1,000 penalty units and are regarded as very serious offences. She also infringed s 235 by unlawfully working without permission from February 2001 to approximately April 2003, an offence punishable by a fine not exceeding $10,000. Her conduct in knowingly staying in Australia after her visa had expired, in breach of the Australian law, for a period of three years, departing only when she perceived a benefit to herself in voluntarily leaving (so as to apply for a prospective spouse visa) does not constitute an offence in itself. It does, however, contribute to an overall picture of contempt for, and disregard of, migration law.
96. There are no mitigating circumstances relating to her breaches of the law. She had argued that by staying without a visa and working without permission she was only seeking to improve her life, as if that were an extenuating circumstance, but it is not. It is common for migration law violators to claim that all they wanted was to have a better life, but that is true of all those who seek to improve their economic position by breaking the law.
97. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. It suffices to say that granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law.
Expectations of the Australian Community
98. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
99. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. That expectation weighs against the grant of a visa to the visa applicant, who has engaged in large-scale abuse of the migration system for personal benefit, including involvement in some form of people smuggling operation.
The Best Interests of the Child
100. The third primary consideration is the best interests of the child. The tribunal is guided on this question by 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”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
101. In this case, Ms Wanwongka has no children. Mr Sorensen has three children, Ryan Sorensen born 5 May 1986 and now aged 19, Tegan Sorensen born 18 April 1988 and now aged 17 and Kirsty Sorensen born 22 August 1991 and now aged 15. Ryan is an apprentice motor mechanic, Tegan works part-time as a shop assistant, and Kirsty is a student. Tegan lives with a boyfriend but the other two children reside with their mother. In his statement of facts and contentions (Exhibit A2) and Mr Sorensen’s statement filed with the tribunal (Exhibit A1), it is submitted that he is very close to his children and sees them at least once per week and that he needs to live in Sydney to provide some stability for his children. I also note the statement of Ms Wanwongka at her departmental interview on 22 June 2005, that she and Mr Sorensen intended to live in Tasmania and she did not want to look after his children and that Mr Sorensen agreed with her.
102. Of the review applicant’s three children, two are under 18. Tegan has gone through difficult times in recent years. Mr Sorensen states that, “She has taken on the divorce between her mother and me personally – she has tried to mediate between her mother and me to resolve problems but she has not been old enough to manage this role. She has had an eating disorder for some years” (Exhibit A1, para 63). She has had other problems as well.
103. Currently Tegan is living with her boyfriend, aged 19, in a garage at his parents’ house. Mr Sorensen believes that she will need a great deal more of his support for a long time, until she has completed her education or when she is in a full-time occupation with full-time training. As she will turn 18 less than three months from now, she is unlikely to be greatly affected by any decision in this case during the short period before the time when her interests cease to be of relevance for the purposes of this consideration.
104. Kirsty, aged 15, is about to enter Year 10 at school. She wishes to complete her education and not repeat the mistakes of her sister Tegan. Mr Sorensen collects her from school three or four times a week during term and helps her with her homework. He believes she needs a great deal of support from him because she is at an impressionable age when she needs him. She is currently living with her mother at her home quite close to Mr Sorensen’s residence in Sylvania Waters.
105. Ms Wanwongka has no children and the respondent contends that her relationship with Mr Sorensen’s children must necessarily be limited, given the short period of approximately a year during which they have known one another. The respondent contends that any hardship the children might suffer if the application was refused and Mr Sorensen relocates to Thailand would be mitigated by the fact that they live permanently with their mother. They see their father approximately once a week, for one or two days at a time or for a short visit (though presumably, that is additional to the three or four times a week in school term when he collects Kirsty from school). The children would be able to remain in contact with him and visit him in Thailand.
106. During the year in which Mr Sorensen lived in Thailand with Ms Wanwongka, he kept in contact with the children through the internet, including webcam video. The children were accepting of that arrangement as long as he did maintain contact. Ms Wanwongka’s mother’s house, where she lives, has a broadband connection which facilitates modern forms of communication.
107. In cross-examination Mr Sorensen said that if Ms Wanwongka were not granted a visa, he would not move to Thailand. If he had to remain separated from her, he would do so because in his priorities the children come first, at least until they are 19 or 20 (transcript 18 January 2006 p14). Mr Eteuati pointed out that the position Mr Sorensen has thus taken removes the issue of separation from his children from the equation. If a visa is not granted, he will remain in Australia in close proximity with his children, who are living with their mother. That argument appears to be correct and I therefore conclude that the best interests of the children will not be prejudiced if a visa is refused.
Other Considerations
108. 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 these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
109. In this case, a refusal to grant a visa to Ms Wanwongka would not disrupt her family, all of whom reside in Thailand. Mr Sorensen gave evidence that his elderly mother resides in Tasmania.
110. Mr Sorensen has business ties to Australia through his involvement with the Phoenix Health Group (no connection with the British insurance group of that name) in which he is a director. If he were to relocate to Thailand, his financial position would be prejudiced by the disruption of his main source of income, and the company itself might well also be prejudiced.
111. It is not disputed that Mr Sorensen is in a genuine marriage relationship with the visa applicant and that he will suffer hardship if a visa is refused, either by remaining in Australia to be with his children but separated from his wife, or by moving to Thailand, losing his income and being separated from his children. On the other hand, he became aware of her unlawful status some four months after meeting her, at about the time the relationship became intimate, and two and a half years before they were married. The respondent refers to Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828, in which the tribunal found that visa refusal would cause hardship to the visa applicant’s husband, “but this was due entirely to the fact that he is making choices which suit him”, a possible reference to the fact that it was he who decided to leave his first wife and children and to continue and develop a relationship with someone he knew to be in Australia unlawfully.
112. As was mentioned above, Mr Sorensen has decided that if a visa is not granted he will remain in Australia for the next few years in order to be with his children. That will be stressful for him, but he will be able to maintain internet video connection with Ms Wanwongka as he did with his children while he was living with her in Thailand, and will be able to visit her in Thailand when his business commitments permit. As he is to some extent his own employer, he will have more flexibility in that regard than most other people would.
113. Mr Sorensen’s son Ryan, 19, is over the age to be treated as a child for the purposes of Direction No 21, but his situation is relevant as one of the other considerations. Ryan suffered serious and permanent injuries in a snowboarding competition organised by his school. They have left him with a dangerous susceptibility to infection and have reduced his life expectancy. Ryan lives with his mother and with his sister Kirsty, near their father’s residence. He is coping well and has resumed some sporting activity, but Mr Sorensen says Ryan relies on him for support, to talk with him about his health and recovery.
114. As Mr Sorensen has said that if the decision under review is affirmed he will not move to Thailand, Ryan will not suffer hardship (in addition to that caused by his injuries) if a visa is refused. The same is true of Tegan, who will turn 18 some 10 weeks from now. The other considerations thus do not weigh substantially against visa refusal in this case.
115. I note that the application is for a temporary spouse visa only, but against that there is little evidence of rehabilitation and recent good conduct other than her marriage to Mr Sorensen and the establishment of relations with his children. Indeed the visa applicant continued to display contempt and disregard for migration law by attempting to mislead the tribunal.
116. I therefore conclude that the other considerations and the best interests of the children in this case do not outweigh the considerations of community protection and expectations.
117. The decision under review should be affirmed.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 18 January 2005
Date of Decision 7 February 2006
Counsel for the Applicant Mr N Poynder
Solicitor for the Applicant Janice Vu & Associates
Solicitor for the Respondent Tigiilagi Eteuati, Clayton Utz Lawyers
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