Souksakhome Hongvilai v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 998
•3 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 998
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1984
GENERAL ADMINISTRATIVE DIVISION ) Re
Souksakhome Hongvilai
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date3 October 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 spouse (provisional) visa – character test – visa application refused on the basis of the Visa Applicant’s 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 protection and expectations of the Australian community against any hardship to the Applicant – held that the hardship to the child and Applicant does not outweigh the other considerations – decision of the Respondent affirmed.
Migration Act 1958 ss 499, 501, 501(6)(c)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Msumba 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
3 October 2003 Mr RP Handley, Deputy President 1. This is an application by Mrs Souksakhone Hongvilai (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 13 December 2002, to refuse the grant of a subclass 309 (provisional) visa to the Applicant’s spouse, Somphone Hongvilai (“the Visa Applicant”).
2. At the hearing, the Applicant was assisted by a friend, Samuel Da Silva, and the Respondent was represented by Ben Cramer, 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”), including supplementary T documents (“the S Documents”), together with the documents tendered by the parties at the hearing. Mr Hongvilai gave evidence by conference telephone and Ms Hongvilai, her father Bountheo Rattanavong, her mother Khampong Rattanavong, and her siblings Sounantha, Sondkone and Phayvanh Rattanavong gave evidence in person.
Background
3. The Applicant, Souksakhome Hongvilai, was born in Vientiane, Laos, on 10 April 1969 and is aged 34. Ms Hongvilai came to Australia in 1991 (T p148) and was granted Australian citizenship on 9 June 1993.
4. The Visa Applicant, Somphone Hongvilai, was born Luangprabang, Laos, on 26 November 1962 and is aged 40. On 21 May 1996, Mr Hongvilai arrived in Australia on a visitor visa valid for three months from the date of arrival (T p99). He worked without permission and did not leave Australia when the visa expired.
5. On 22 September 1996, Mr Hongvilai lodged an application for a protection visa on the grounds of persecution for his political beliefs (T6 p45). On 21 May 1997, a delegate of the Respondent refused his application on the basis that he was not a person to whom Australia owes protection obligations under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol (S1 p156). On 23 June 1997, Mr Hongvilai lodged an application for a review of the decision by the Refugee Review Tribunal (“RRT”), which affirmed the decision of the delegate on 26 August 1998 (S p175).
6. On 22 September 1998, Mr Hongvilai’s bridging visa expired and he remained in Australia and worked without permission until located by departmental officers on 9 February 2001.
7. On 4 July 1997, Mr Hongvilai lodged a Notice of Intended Marriage with a Civil Marriage Celebrant, Thelma Daley of Smithfield, on the basis of his intention to marry Ms Hongvilai, then known by her maiden name of Souksakhone Rattanavong (S3 p163). On 2 August 1997, Mr Hongvilai wrote to Ms Daley informing her that he wished to cancel his wedding arrangements for his intended marriage to Souksakhone Rattanavong as now he intended to marry another person (S5 p168). Enclosed with that letter was a Notice of Intended Marriage to Jacquiline Leanne Nash (S4 p166). On 27 September 1997, Mr Hongvilai and Ms Nash were married (T p147). The marriage ended in divorce on 2 April 2000 (T p115), no children having been born of the relationship.
8. On 6 May 2000, Mr Hongvilai and Ms Rattanavong were married (T p109).
9. On 9 February 2001, Mr Hongvilai was located working unlawfully and asked to make arrangements to leave Australia. On 17 February 2001, Mr Hongvilai departed Australia. On 2 April 2001, Mr Hongvilai lodged an application for a subclass 309 (provisional) spouse visa at the Australian Embassy in Bangkok, Thailand (T p117).
10. On 27 March 2002, Ms Hongvilai gave birth to the couple’s first child, a son, Aaron Hongvilai, at the Caroline Chisholm Centre, Liverpool, Sydney (T p133).
11. On 23 January 2002 and 23 July 2002, Mr Hongvilai was interviewed by an immigration officer at the Australian Embassy in Vientiane (T14 p121, T24 p145). On 13 December 2002, a delegate of the Respondent decided to refuse the grant of a visa to Mr Hongvilai on the ground that he is not of good character because of his 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”) (T p11). On 24 December 2002, the Applicant lodged an application for a review of this decision with the Tribunal.
Relevant Law and Policy
12. 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), and 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) (ii), that “having regard to the person’s past and present general conduct … the person is not of good character”.
13. 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”.
14. 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.
15. The issue for the Tribunal to determine in this case is, therefore, whether Mr Hongvilai is not of good character having regard to his past and present general conduct so as to be precluded from the grant of a subclass 309 (provisional) visa. If the Tribunal decides he is not of good character, it must consider whether to exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa.
Evidence
Souksakhone Hongvilai (the Applicant)
16. Ms Hongvilai said she first met Mr Hongvilai about three weeks before they signed the Notice of Intended Marriage on 6 July 1997. This was an arranged marriage and Mr Hongvilai came to visit her at her family home. However, the marriage did not go ahead because the two families were unable to agree about the dowry. Following this, Mr Hongvilai married Jacquiline Nash but the marriage only lasted three months.
17. Ms Hongvilai said she first began to have feelings for Mr Hongvilai in 1999 and they then began dating as boyfriend and girlfriend. He used to come and visit Ms Hongvilai at her family home and they would go out together to parties and to relatives’ houses. Ms Hongvilai saw him at least once a week and sometimes in the evenings after work.
18. Ms Hongvilai said it is common in her culture for there to be arranged marriages. Mr Hongvilai was introduced by a relative and her family wanted her to get married because he is a good person and because she loved him. He proposed to her after the two families had reached an understanding about the dowry to be paid.
19. Ms Hongvilai said when she first met her husband, he said he was in Australia on a visitor visa. Later, when he proposed to her, he told her he was not in Australia legally. She thought by marrying him, Australian people would have compassion. He said they would have to get married and then would need to lodge some documentation. Therefore, after the marriage, they lodged a visa application for Mr Hongvilai to come to Australia. Ms Hongvilai said she is not aware whether Mr Hongvilai applied for a visa while he was living with Ms Nash.
20. After they were married on 6 May 2000, Mr and Ms Hongvilai lived in her parent’s house until Mr Hongvilai departed Australia on 17 February 2001. There were seven people living in the household and Mr and Ms Hongvilai paid board to her parents. It is a five bedroom house and they had their own bedroom. Mr Hongvilai helped with household duties and there were no problems with his living with her family. He talked all the time about starting his own family and having children, and they began putting aside money to start a new life. After the marriage, Ms Hongvilai was working ─ she had a business at home sewing clothes. Her husband was working on a farm growing vegetables, but Ms Hongvilai does not know who his employer was. Mr and Ms Hongvilai plan to have a farm themselves in the future. Theirs was a husband and wife relationship – in love with one another. He showed his feelings for her by being dedicated and honest with her.
21. When Mr Hongvilai departed Australia on 17 February 2001, Ms Hongvilai accompanied him to Laos and they lived together with his family in Luangprabang for eight months. Ms Hongvilai returned to Australia on 10 November 2001 because she was pregnant and wanted to have the baby in Australia because it was safer. She had previously had a miscarriage and said medical technology is relatively primitive in Laos and giving birth is therefore more dangerous. Ms Hongvilai has not seen her husband since 10 November 2001 and he has not seen their baby who was born on 27 March 2002. They maintain contact by speaking on the phone once a week and by exchanging letters every two weeks. On the phone they talk about love and about their child. In the meanwhile, Ms Hongvilai is living in her family home with support from her parents and siblings. She receives social security benefits as a sole parent. Ms Hongvilai said she misses her husband all the time and sometimes cries herself to sleep. When either she or the baby is sick, she feels as if there is no one to look after them.
22. Ms Hongvilai said her husband continues to live in a village in Luangprabang with his parents. It is very hard to find employment there and her husband grows vegetables. She does not receive any financial support from him. Life is not very good and the standard of living is poor. Ms Hongvilai said she does not want to live in Laos because of her child’s education and future. If her husband is not granted a visa, she will remain in Australia but it will be very lonely raising a child without a husband. She needs a husband to help her. She would remain married to Mr Hongvilai and would go and visit him in Laos but not live there.
Somphone Hongvilai (the Visa Applicant)
23. Mr Hongvilai provided a statement faxed on 8 September 2003 (A2). Mr Hongvilai said before coming to Australia, he lived in Luangprabang but had moved in Vientiane to work and save money before coming to Australia as a visitor. He said life in Laos is not very good because it is a developing country.
24. Mr Hongvilai entered Australia on 21 May 1996. His cousin and her family had invited him to visit them in Australia. He liked Australia: it was very different to Laos, more developed, with better opportunities for education, and friendly people. Although he was aware that his visitor visa was only valid for three months and that he was not allowed to work, he worked both as a welder and on a farm.
25. After Mr Hongvilai’s visitor visa expired, he applied for a protection visa. He went to a migration agency and they submitted the application on his behalf. He just signed the forms without knowing what a protection visa was. He did not speak very much English at the time. After the application was lodged, he thought he was in Australia legally. When the protection visa application was refused, he applied to the RRT and attended the hearing, maintaining the claim made in his protection visa application that he feared returning to Laos, although this was false. He acknowledged that the protection visa application was lodged to enable him to stay in Australia. After the RRT refused his application, he still did not leave Australia although he knew he did not have permission to stay or to work.
26. Mr Hongvilai said he first met his wife a few weeks before he signed the Notice of Intention to Marry in 1997. It was to be an arranged marriage between their two families and the marriage did not go ahead because there was disagreement between the families over the dowry. In Lao custom, the groom pays for everything including the ceremony and wedding itself and things for the home. Because of the disagreement, the marriage was cancelled and he decided instead to marry Jacquiline Nash. She was his first European girlfriend and they were in love. However, the marriage only lasted for three months and when Ms Nash went on holiday to Thailand, she never returned to him. Mr Hongvilai acknowledged that he married Ms Nash both because he wanted to stay in Australia and because he was in love.
27. In 1999, Mr Hongvilai met Ms Hongvilai again and he started visiting her once or twice a week. Ms Hongvilai is a very good person and used to cook food for him. They would go shopping together and to the movies. In due course, their respective families agreed to the arrangements for the marriage and they were married on 6 May 2000. After the marriage, Mr Hongvilai went and lived with his wife in her family home. He said her family are good people. He did not tell his wife or her family about his migration status and that he was in Australia unlawfully. He thought if he did so, they might not be happy and would be upset with him. So he never told them about his problems. During this period, he worked as a welder in an engineering firm paying tax in the ordinary way. He had to do this because he needed money to get married. After working as a welder for two and half years, he worked on a chicken farm, but he did not pay any tax in that job because he had to return to Laos. He left on 17 February 2001 after departmental officers found him working without permission and without a valid visa. Mr Hongvilai said he knows he did wrong to the Australian Government and immigration system and is very sorry for what he has done. Since returning to Laos, he has reconciled with his wife’s family.
28. Ms Hongvilai returned to Laos with him and stayed for about eight months. She did not like it very much in his family house, which is in a village. There is no mains water there and they get water from a well. Transport is not good and he cannot get employment. He grows vegetable with his parents. He and Ms Hongvilai wanted to start a family and live together, but there was not enough income to support them both and his wife did not like the food. She returned to Australia because she was pregnant and he has not seen her since and he has not seen his son.
29. Mr Hongvilai said he was happy in Australia and wants to be with his wife and son. He is upset and depressed at their separation. They keep in contact by phoning once or twice a week and by exchanging letters once a week. They talk about their love for each other and their son who was born 27 March 2002. His wife told him that the birth was by caesarean and he was upset that he was not able to be there with her. However, he was happy and proud to have a son and that his wife was being cared for in a good hospital system. He is very upset that he is not able to be with his son who is now over a year old. He has not seen or held him and only hears his voice on the phone. He comforts his wife by saying that, hopefully, they can soon be together again. He still loves his wife very much.
30. Mr Hongvilai said he spends his time gardening or staying at home and looking at the photographs of his wife and son and thinking about his family in Australia. His wife sends him a photo of their son every month. For his son’s first birthday, Mr Hongvilai bought his son a present in Laos to remember him by and sent this to him. He is not able to send his wife any money. Any money he can save, he uses to pay for telephone calls or stamps. If he is not granted a visa, he does not know what to do. His son will not know his father and Mr Hongvilai will be unable to support his wife and son.
31. Mr Hongvilai said if he is granted a visa, he will look for work and do anything to support his wife and son so they can live together as a family. He is a good person who does not smoke and only occasionally drinks beer. He works hard and will improve himself. He wants to be a good father to his son and good husband to his wife. He admits that he broke the rules and did wrong but now asks to be reunited with his family and allowed to prove that he is not of bad character.
Bountheo Rattanavong
32. Mr Rattanavong, who is Ms Hongvilai’s father, said he first Mr Hongvilai when he came and proposed marriage to his daughter in 1997. Mr Hongvilai seemed to be a good person. However, the two families were unable to agree to arrangements over the dowry and so the marriage was cancelled. Mr Rattanavong said in Lao custom, the man takes care of everything and pays all the expenses of the marriage.
33. Mr Rattanavong is aware that Mr Hongvilai subsequently married Ms Nash and Mr Rattanavong did not see Mr Hongvilai again until 1999 at a shop. Mr Hongvilai then began to visit his daughter at the family home about once a week. When Mr Hongvilai proposed marriage to his daughter for a second time, Mr Rattanavong asked his daughter about this and she said they were in love. He asked Mr Hongvilai if he really loved his daughter and could provide for her. Mr Hongvilai said he could stay in Australia and had been to Canberra to regularise his visa. Mr Rattanavong approved the marriage.
34. Mr and Ms Hongvilai were married in May 2000 and lived together in Mr Rattanavong’s family house. They lived together respecting each other according to Lao custom and Mr Rattanavong never saw them have a dispute.
35. Mr Rattanavong was very upset and disappointed when he learnt that Mr Hongvilai had to leave the country and that he had lied to them about his visa. However, he hopes the Government will take compassion on his daughter and her child and allow Mr Hongvilai to come to Australia to be with them. His daughter is still living with Mr Rattanavong and their family and being supported by them although she receives a Centrelink payment.
Khampong Rattanavong
36. Mrs Rattanavong, who is Ms Hongvilai’s mother, said she first met Mr Hongvilai in 1997. He seemed to be a good person. The first time he proposed to her daughter there was no agreement between the families as to the dowry and the marriage therefore did not go ahead. However, her daughter and Mr Hongvilai stayed in touch and after a while Mr Hongvilai would come over once or twice a week to see her daughter. In 2000, agreement was reached for them to get married and they were married in May 2001. After the wedding, Mr Hongvilai came to live with her daughter at the family house. He is a good person, loves her daughter and is truthful and loyal to her. He also gets on well with their family. He remained in the family home until he returned to Laos.
37. Mrs Rattanavong said she was not aware that Mr Hongvilai had married Ms Nash. When Mr Hongvilai proposed to her daughter the second time, he told Mrs Rattanavong that he would care for her daughter and that he could stay in Australia. She was therefore very upset when he had to leave Australia. However, she felt sorry for him. Mrs Rattanavong said although she and her husband help their daughter care for her child, her daughter needs her husband to help raise him.
Sounantha Rattanavong
38. Mr Rattanavong is Ms Hongvilai’s younger brother. Mr Rattanavong said he first met Mr Hongvilai in 1997. Mr Hongvilai did normal things and appeared to be a good person. He did not smoke, he worked hard and he did not go around gambling. He used to come around about once a week to see Mr Rattanavong’s sister. Mr Rattanavong was not really aware of the marriage proposal before it happened and, after the disagreement over the dowry, he did not see Mr Hongvilai again until the end of 1999. After that, Mr Rattanavong saw more of Mr Hongvilai because Mr Hongvilai and his sister used to go out together. Then, after the marriage, they lived together in the family home. They were in love and Mr Hongvilai got on well with the rest of the family.
39. Mr Rattanavong said his sister was very upset when Mr Hongvilai had to return to Laos and she cried at times. It has been very hard on her and she is not happy like she was before. Mr Rattanavong said he was angry and upset that Mr Hongvilai did not tell them the whole truth about his situation, but Mr Rattanavong said he does not have anything against Mr Hongvilai now.
40. Mr Rattanavong said Mr Hongvilai writes letters to and phones his sister. He seems more honest than before – accepting that what he did was wrong and willing to change for the better. Mr Rattanavong’s family have all been affected by what has happened and are angry with Mr Hongvilai because Ms Hongvilai has to raise her son by herself. It is very hard for her on her own and it is hard on the child to be without a father. Mr Rattanavong said he does what he can to help. He has spoken to Mr Hongvilai once or twice when Mr Hongvilai has phoned to speak to his sister.
Sondkone Rattanavong
41. Ms Rattanavong is Ms Hongvilai’s younger sister. She said she first met Mr Hongvilai in 1997 when he would come over bringing fruit and vegetables. He was friendly. Ms Rattanavong did not know much about the proposed marriage, but was aware that there was disagreement over the dowry. After that, she did not see Mr Hongvilai for a while, although she bumped into him occasionally in the Lao community. She was not aware of his marriage to Ms Nash.
42. When Mr Hongvilai and her sister started going out together, Ms Rattanavong could see that her sister was happy. Mr Hongvilai was the first real boyfriend with whom she had had a strong relationship and he treated her well. Ms Rattanavong thought he was a good person. After they were married, they would stay at home together. Her sister would cook dinner for Mr Hongvilai after work and the family was aware that Ms Hongvilai was happy.
43. Ms Rattanavong said it was complications with her pregnancy that led her sister to return to Australia to have her baby, which was by caesarean. Ms Hongvilai spent the last two months of the pregnancy in hospital. She was depressed because her husband was not here and was quieter than usual. Ms Rattanavong said her sister’s baby tends to cry a lot at night and it is hard for her. Ms Rattanavong has spoken to Mr Hongvilai occasionally on the phone and he seems more open than before.
Phayvanh Rattanavong
44. Mr Rattanavong is Ms Hongvilai’s brother who provided a reference for Mr Hongvilai dated 6 May 2003 (A1). Mr Rattanavong said he first met Mr Hongvilai in 1997 and he seemed to be a quiet sort of man. Mr Rattanavong did not see him very much and he was not aware of family negotiations over the dowry. Mr Rattanavong was married in 1999 and now has a son aged two who is the greatest joy of his life. Mr Rattanavong no longer lives in the family home and so was not involved in the arrangements over Mr Hongvilai’s second marriage proposal.
45. Mr Rattanavong said his sister was happy with Mr Hongvilai. He remembers Mr Hongvilai bringing her flowers and gifts. He seemed to be a hard-working man and on one occasion Mr Rattanavong and Mr Hongvilai did some repairs and renovations to the family house.
46. Mr Rattanavong has spoken to Mr Hongvilai a few times on the phone since he left Australia. He seems to have changed for the better and realises that what he did was wrong.
Submissions
Applicant
47. Mr Da Silva, for the Applicant, said Mr Hongvilai admits having made false and misleading statements in relation to his visitor visa application. He came to Australia intending to stay and overstayed his visa and worked without permission. He has also admitted to the false claims in his protection visa application and that he was in Australia without permission and worked unlawfully from after the expiry of his bridging visa in September 1998 until he was located by departmental officers in February 2001.
48. Mr Da Silva noted that Mr Hongvilai’s first proposed marriage to Ms Hongvilai was cancelled due to disagreements between the parties. He subsequently married Ms Nash but that marriage broke down after three months.
49. Mr Da Silva said Ms Hongvilai has pleaded for her husband to return to Australia. Their separation is causing her significant financial and emotional hardship and stress. Mr Hongvilai is a kind and loving husband who loves his wife and has admitted his mistakes. Their son is an Australian citizen who will be deprived of a father and suffer hardship if Mr Hongvilai is not granted a visa. Ms Hongvilai has said she will not go to Laos to live because of the poor health and education services there.
Respondent
50. Mr Cramer, for the Respondent, said Mr Hongvilai has acknowledged that he breached his visitor visa and worked without permission and overstayed. He also admits having lodged a protection visa application to prolong his stay on the basis of claims which were false and misleading. Mr Hongvilai said he was not aware of the nature of the claims although he maintained those claims at the hearing before the RRT.
51. With regard to Mr Hongvilai’s marriage with Jacquiline Nash in September 1997, Mr Cramer noted that this occurred shortly after the delegate’s refusal of Mr Hongvilai’s protection visa application. The Respondent contends that that marriage was not genuine and was entered into in order to enable Mr Hongvilai to stay in Australia. Mr Hongvilai admitted in evidence that this was one of the reasons for the marriage.
52. Mr Cramer submitted that Mr Hongvilai’s overstaying his visitor visa, working without permission, lodging a false protection visa application, remaining in Australia after his bridging visa had expired, and entering into a contrived marriage amounts to serious misconduct which warrants a finding that Mr Hongvilai does not pass the character test.
53. With regard to the exercise of the discretion under s 501(1) of the Act and the guidance provided by Direction No 21, Mr Cramer contended that the seriousness of Mr Hongvilai’s misconduct and the need to deter others from similar misconduct weigh heavily against the discretion being exercised in Mr Hongvilai’s favour. The Respondent contends that there has been no genuine remorse by Mr Hongvilai. He was not honest with the immigration authorities, he no made attempt to regularise his status and he even lied to Ms Hongvilai’s family about his status. The Respondent contends that he would continue to breach Australian law if it suited him to do so. The Australian community would not expect that a person who had shown such disregard for the law would be permitted to enter and remain in Australia.
54. With regard to the best interests of the child, Mr Cramer acknowledged that these interests are normally served by the child being with both parents. However, this needs to be balanced against other factors. As to the other considerations relevant here, Mr Cramer acknowledged that the parties are suffering emotional hardship and that there may also be financial hardship to Ms Hongvilai and to her family who are providing additional support. This was brought about by Mr Hongvilai’s failure to be honest with the immigration authorities and with Ms Hongvilai’s family. Ms Hongvilai could relocate to Laos to live with her husband but chooses to stay in Australia, although she says she is prepared to visit Laos.
55. Mr Cramer said the seriousness and nature of Mr Hongvilai’s conduct outweigh any considerations in favour of not refusing him a visa and therefore, the discretion under s 501(1) should not be exercised in his favour.
Application of the Law and Findings
56. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Hongvilai passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry …
57. In Re Msumba 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 (Godly 1999 FCA 1277).
58. 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, the Visa Applicant, Mr Hongvilai, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to not refuse the grant of a visa, notwithstanding that the Visa Applicant 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.
59. 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)).
60. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. The Tribunal notes that the Applicant has admitted that Mr Hongvilai has made false and misleading statements in his visitor visa application in so far as he intended to remain in Australia. When he arrived in Australia, he worked without permission and overstayed his visitor visa. He then lodged a protection visa application relying on advice from a migration agent. He claims to have just signed the form, relying on the claims concocted by the agent, although he now accepts responsibility for this. He admits he did not fear returning to Laos as claimed in the application. Mr Hongvilai maintained these false claims in a hearing before the RRT.
61. Mr Hongvilai married Jacquiline Nash on 27 September 1997. Whilst claiming that this was not a contrived marriage and that he loved Ms Nash, Mr Hongvilai acknowledged in evidence that his desire to remain in Australia was one of the two reasons that he married her. The marriage broke down after three months and, in 1999, Mr Hongvilai recommenced contact with his now wife leading to a second proposal of marriage which was approved by Ms Hongvilai’s family. However, the approval was on the basis of Mr Hongvilai’s assuring them that he was in Australia lawfully and could remain here. He lied to them and they were understandably angry and upset when they discovered this later.
62. Mr Hongvilai’s bridging visa expired on 22 September 1998 following the decision of the RRT affirming the decision of the delegate to refuse Mr Hongvilai’s protection visa.
63. Mr Hongvilai admitted that he did not tell his wife’s family about his unlawful status in Australia at the time that he proposed to Ms Hongvilai. He lied, telling them he was able to remain in Australia. Although the marriage was one arranged by Lao custom, the Tribunal accepts that Mr and Ms Hongvilai had established a genuine relationship prior to the marriage and that the relationship they have now is one based on love and care. The Tribunal finds that both Mr and Ms Hongvilai are suffering emotional hardship as a result of their separation. Ms Hongvilai is receiving support from her family and Centrelink benefits as a sole parent. The Tribunal notes Ms Hongvilai’s evidence that she was aware at the time of their marriage that her husband was in Australia illegally but thought that if she married him, people would have compassion. Mr and Ms Hongvilai’s son Aaron, who was born on 27 March 2002, is an Australian citizen. He has never seen his father. The Tribunal finds that it would be possible for Ms Hongvilai to relocate to Laos with her son to join her husband although clearly, she does not wish to do so. She has stated that her intention is to remain in Australia if her husband is refused a visa but she would visit him in Laos.
64. Turning to whether Mr Hongvilai passes the character test having regard to his past and present general conduct, the above findings refer to serious breaches of immigration law, including false and misleading statements, false claims, remaining in Australia without a valid visa and working without permission. In addition, Mr Hongvilai lied to his wife’s family concerning his status in Australia. These are all serious matters and, in the Tribunal’s view, justify a finding that Mr Hongvilai does not pass the character test.
65. Having decided that Mr Hongvilai does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Hongvilai. 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.
66. 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.
67. 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…
68. 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).
69. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “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.
70. 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”.
71. With regard to the first primary consideration, the Tribunal has already found that Mr Hongvilai has been guilty of serious immigration misconduct in connection with entry or stay in Australia. The pattern of misconduct over a period of at least three years indicates to the Tribunal that there maybe a likelihood of Mr Hongvilai’s repeating this misconduct if he believes this would be to his benefit. Despite his statements of remorse, the Tribunal is not satisfied as to his rehabilitation. With regard to deterrence, the Tribunal recognises that refusal of a visa in such circumstances may deter others from similar misconduct.
72. With regard to the second primary consideration, the expectations of the Australian community, in the Tribunal’s view the Australian community would consider, in a case involving a number of incidents of misconduct including lying to his wife’s family, that it would not be appropriate for him to be granted a visa.
73. 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”.
74. Mr and Ms Hongvilai’s child is eighteen months old. The Tribunal recognises that in general terms, the child’s best interests would be served by his living with both parents. In this case, the child is an Australian citizen by birth and has lived with his mother and her family since that time. He has never seen his father and the only contact they have had has been over the telephone. In the case of a young child, this is obviously unlikely to have lead to a relationship. Laos is a developing country and there is no dispute the economic situation and health and education services are superior in Australia. Employment opportunities and career prospects are also better. However, it is clear Ms Hongvilai could return to live with her husband in Laos taking their child with her and he would have the prospect of returning to Australia at a later date. Ms Hongvilai lived with her husband in Laos for eight months in 1991.
75. 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 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; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
76. The Tribunal recognises that the refusal of a visa to Mr Hongvilai would cause significant disruption to his relationship with his wife and son. However, as indicated above this could be overcome if Ms Hongvilai chose to relocate to Laos. The Tribunal accepts that both Mr and Ms Hongvilai are currently suffering emotional hardship as a result of their separation although Ms Hongvilai is fortunate to have the support of a loving family with whom she lives. The Tribunal notes that she was aware that her husband was in Australia unlawfully at the time of their marriage even though Mr Hongvilai gave evidence did not tell either her or her parents of this. Ms Hongvilai’s family are in Australia. Except for his wife and child, Mr Hongvilai’s family are in Laos. Ms Hongvilai has the option of relocating to Laos, even if only in the short-term, should she wish to do so.
77. Weighing up the primary and other considerations, the Tribunal is not satisfied that the interests of the child is this case outweigh the other considerations namely the protection of the Australian community and the expectations of the community. The Tribunal notes in particular the lack of any substantial evidence to indicate Mr Hongvilai’s rehabilitation. It may be, in the future, that there will such evidence and that a decision-maker considering an application by Mr Hongvilai for a spouse visa may come to a different view to that reached by the Tribunal. However, at the present time, it is the Tribunal’s opinion that the appropriate decision is not to exercise the Minister’s discretion under s 501(1) of the Act in favour of Mr Hongvilai with the consequence that the decision under review must be affirmed.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 9 and 10 September 2003
Date of Decision 3 October 2003
Representative for the Applicant Mr S Da Silva
Representative for the Respondent Mr B Cramer, Solicitor
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