Srym and Minister for Immigration and Multicultural Affairs
[2002] AATA 667
•7 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 667
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/338
GENERAL ADMINISTRATIVE DIVISION )
Re ENG SRYM
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date7 August 2002
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Immigration – remaining relative visa – whether applicant fails to pass the character test – past general conduct – false and misleading information – whether discretion should be exercised – Direction No 21 – hardship to immediate family – decision to refuse affirmed.
Migration Act 1958 – s501
Lachmaiya v Department of Immigration & Ethnic Affairs (1940) 19 AAR 148
Ragni Mala Prasad v Minister for Immigration & Ethnic Affairs (AAT Decision No. 9822, 7 November, 1994),
REASONS FOR DECISION
7 August 2002 Mr S P Estcourt QC., (Deputy President)
This is an application by Eng Srym ("the applicant") for the review of a decision made by a delegate of the Minister for Immigration & Multicultural Affairs ("the respondent") refusing, pursuant to s501 of the Migration Act 1958 ("the Act"), to grant to the applicant's son Seng Sothear ("the visa applicant") a Preferential Relative (Migrant) (Class AY) Visa, Sub-class 104 (Remaining Relative).
The delegate's decision was made under s501 of the Act which relevantly provides:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…
501(6) For the purposes of this section, the person does not pass the character test if:
…(c) having regard to either of the following:
…
(ii)the person's past and general conduct; the person is not of 'good character'."
The exercise of power under s501 of the Act involves, firstly a consideration of whether the visa applicant is of good character and second, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In her decision the Minister's delegate refused to grant the visa applicant's remaining relative visa application under s501 on the basis that she found the visa applicant did not pass the character test and she refused to exercise her residual discretion in the visa applicant's favour.
The nub of the respondent's refusal of the visa applicant's visa was that to his knowledge in January 1996, when he was 16 years old, he was improperly included in a spouse visa application made by his aunt Kim Sean Suy who stated that the visa applicant was her son, and, that five years later when being interviewed at the Australian Embassy in Phnom Penh he falsely denied that he had ever applied for a visa in the past.
On behalf of the applicant it was conceded by his counsel in opening, that the visa applicant had been improperly included in his aunt's application in 1996 and it was accepted that he subsequently failed to reveal that earlier application.
In the exercise of its jurisdiction, the Tribunal is bound to consider a number of factors specified by the Minister's Direction No. 21, made under s499 of the Act, which provides guidance to decision-makers in making decisions to refuse or cancel a visa under s501.
Paragraph1.9 of that Direction relevant provides:
"In considering whether a non-citizen is not of good character against sub-paragraph 501(6)(c)(ii) decision-makers should consider the following matters (where they are relevant to the facts of the particular case) and where they are relevant, would, in the absence of any countervailing factors constitute a failure to pass the character test:
…(b)whether the non-citizen 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;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in sub-section 501 of the Act about the non-citizen's character or conduct or both."
Whilst a countervailing factor in this case must be that the visa applicant was only 16 years old at the time of his aunt's application, his mother, the review applicant, gave evidence to the Tribunal that she had told the visa applicant that he had been listed in her sister's spouse visa application as her sister's son. The visa applicant's signature appears on Ms Kim Sean Suy's spouse visa application beneath a declaration that states among other things:
"I declare information supplied on or with this form, and any attachments, is complete, true and up to date in every detail.
…
I understand that if I have given incorrect information, my application may be refused, I may be refused entry to Australia, or I could be removed after I arrive in Australia."
10.The visa applicant gave evidence that he knew he had been included in an application to come to Australia, but that his aunt arranged everything and he did not know anything about that which was stated or included in the application.
11.Making due allowance for the visa applicant's youth and the fact that his evidence was given through an interpreter and via telephone, I do not find him a convincing witness. In particular, I do not accept his evidence, in the face of his mother's evidence, that he did not know anything about being described as Ms Suy's son in her spouse visa application.
12.On interview in Phnom Penh on 29 January 2001, the visa applicant was told that it was important that answers to questions be truthful and that if a question was not understood he should tell the interviewer that the question was not understood.
13.At that interview the visa applicant was asked whether he had ever applied for a visa at that office in the past. He answered that he had not. He was asked whether he was sure. He answered that he was. The question was repeated and he was asked again if he was sure. He repeated his answer that he was.
14.Later in the interview, the visa applicant was asked whether he would like to comment on his previous migration application and he was shown the application lodged by his aunt. His answer was:
"She is my aunt. When she lodged her application, she included me as her child."
A little later, the visa applicant was asked:
"If you knew that you were not her child, why did you agree to being included as Ms Suy's child?"
He answered:
"I thought I would be migrating to Australia."
He said that he wanted to go to Australia because it is a good country.
18.In the face of the answers given at that interview and making due allowance for the stressful circumstances in which the visa applicant may have found himself, I do not accept his evidence to the Tribunal that before he was shown his aunt's visa application at the Australian Embassy he knew nothing about it,except that he had been told that he had been included in an application to come to Australia. (I should add that even if that was the full extent of his knowledge, I cannot accept that his answers given to the questions asked of him on the interview, which are set out above, were truthful.)
19.Ministerial Direction 21 provides by paragraph 1.11 that general conduct also includes recent good conduct and that both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. Relevantly therefore it should be noted that there is no suggestion in this case that the visa applicant is of bad character other than in an immigration sense.
20.In Ragni Mala Prasad v Minister for Immigration & Ethnic Affairs (AAT Decision No. 9822, 7 November, 1994), Deputy President McDonald observed:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness."
I respectfully agree.
21.I also agree and adopt the observation of Deputy President McMahon in Lachmaiya v Department of Immigration & Ethnic Affairs (1940) 19 AAR 148 where the Deputy President said:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia."
22.In my view, notwithstanding that the visa applicant may be otherwise of good character, any good qualities possessed are outweighed in this case by his signing, with knowledge of his false inclusion, his aunt's spouse visa application, his failure to acknowledge that application until confronted with it upon interview by migration officials, and his denial in evidence before the Tribunal of any knowledge of inclusion in his aunt's visa application as her son which I have found to be false.
The visa applicant has failed to satisfy me that he passes the character test.
24.Turning to the residual discretion under s501 of the Act to nevertheless grant a visa in the face of a failure to pass the character test, Ministerial Direction No.21 requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The three primary considerations are:
(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.
26.A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No.21, a consideration of:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated;
(c)the likelihood that the visa refusal would prevent like offences by other persons.
27.Ministerial Direction No.21 makes it clear that the Australian government regards serious offences against the Migration Act as very serious. Section 234 of the Act makes it an offence, in connection with a visa application, to make a false or misleading statement or to furnish a document containing a false or misleading statement and provides a penalty for a breach of that section of 10 years imprisonment or a fine of $110,000 or both. I am satisfied therefore that the conduct is serious notwithstanding, as I have already observed, the youth of the visa applicant.
28.It is unlikely that the visa applicant would repeat his conduct given that his application is for a permanent visa, however the remaining consideration of general deterrence is relevant and I am satisfied that if the visa applicant is refused entry because of his breaches of Australia's migration laws other persons in a similar situation may be less minded to act similarly.
29.As to the expectations of the Australian community, as I have observed in a number of previous cases, it must be trite to say that the Australian community expects non-citizens to obey its migration laws and to be open and honest with migration officials in relation to visa applications. The Australian community would not expect immigration misconduct would be rewarded by the grant of a visa after the non-citizen's breaches of Australia's migration laws have been detected by migration officials.
30.There is not, in this case, any relevant parental relationship as the third of the three "primary considerations" only applies if the child is less than 18 years of age and the visa applicant born on 11 December 1979 is now 22 years old. (The best interests of any children aged 18 or more whilst not a primary consideration under Ministerial Direction No.21 may be considered with a number of "other considerations" set out under paragraph 2.17 of the Direction and I do take into account that the visa applicant is the review applicant's only son in that context).
31.The review applicant was born in Cambodia on 24 December 1941 and is now aged 59 years. She married an Australian citizen Mr Cheam Sov on 22 October 1996 and has herself since become an Australian citizen. Mr Sov is presently aged 87 years.
32.The review applicant was previously married between 1970 and 1979. That marriage ended with the death of her husband on 20 June 1979. That marriage produced an only child, the visa applicant who remained in Cambodia when his mother came to Australia.
33.I have already alluded to the fact that in addition to the three "primary considerations" set out in Direction No.21, I am required to have regard to relevant "other considerations" which may be taken into account, although generally accorded less individual weight than the "primary considerations".
34.In this case relevant "other considerations" are the degree of hardship which would be caused to immediate family members lawfully resident in Australia and the family composition of the non-citizen's family, both in Australia and overseas.
35.The visa applicant has no immediate family in Cambodia, his aunt along with her daughter were tragically killed in a grenade attack in 1998. The visa applicant's only near relative is his mother who has not returned to Cambodia since coming to Australia in 1996 and who I accept, apart from any other considerations, has, having made Australia her home, no desire to return to a country she sought to escape many years ago.
36.In Australia, the review applicant has no relatives apart from her husband and whilst he might have three children and 11 grandchildren, the couple live alone and they have little family contact.
37.The review applicant's husband suffers from high blood pressure, poor eyesight and diarrhoea. He has difficulty walking around the house and has been recently diagnosed with lung cancer. On the basis of evidence given by his general practitioner, Dr A.C. de Jong, I am satisfied that the review applicant's husband requires her constant attention and that he would not be able to travel to Cambodia with her were she minded to visit her son there.
38.In these circumstances, the enforced separation brought about by the refusal of the visa applicant's visa will work great hardship on both mother and son. I am not persuaded however, that in this case the "other considerations" outweigh the primary considerations of the protection of the Australian community and its members and the expectations of the Australian community.
39.It follows that the decision of the Tribunal is that the decision under review, namely the refusal of the visa applicant's remaining relative visa is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC.,
Deputy PresidentSigned: K L Miller
Administrative AssistantDate/s of Hearing 16 July 2002
Date of Decision 7 August 2002
Counsel for the Applicant Mr Michael Clothier
Solicitor for the Applicant Erskine Rodan and Associates
Counsel for the Respondent Mr Richard Knowles
Solicitor for the Respondent Clayton Utz
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