Sunly and Minister for Immigration and Multicultural Affairs - [2001] AATA 832

DECISION AND REASONS FOR DECISION [2001] AATA 832

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/337

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SAO SUNLY
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis, Q.C., Deputy President

Date4 October 2001
PlaceSydney

Decision      The decision under review is affirmed.
  [SGD] The Hon R N J Purvis Q.C.,
  Deputy President
CATCHWORDS
Immigration – subclass 309 provisional spouse visa – whether visa applicant satisfies the Tribunal that she passes the character test – past and present general conduct – false statements and false documentation – whether the Tribunal should exercise available discretion to refuse to grant spouse visa – hardship to review applicant – "best interests of the child" – protection of the Australian community – expectations of the Australian community
Migration Act 1958 – ss 501(6)(c)(ii)
Migration Regulations 1994
Minister's Direction No 21 (Visa Refusal and Cancellation under section 501)
Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422
Goldie v Minister of Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

The Hon R N J Purvis, Q.C., Deputy President
the application

This is an application by Mr Sao Sunly ("the Review Applicant") filed 15 March 2001 seeking review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on the 16 of February 2001. By such decision the Respondent refused to grant Ms Lim Vuoch Ly ("the Visa Applicant") a subclass 309 provisional spouse visa, on the ground that she was not of good character because of past and present general conduct.
In the Statement of Reasons provided by the Respondent it was stated (T3, pp15-17):
"…
4. I have taken into account the following considerations in assessing the applicant's past general conduct:
The applicant provided incorrect and misleading information in two applications for visas for Australia.
The applicant made false and misleading statements to Departmental officers on several occasions.
The applicant provided bogus documents in connection with a current visa application.
5 I have taken into account the following considerations in assessing the applicant's present general conduct:
The applicant is a spouse of an Australian citizen.
The applicant was not totally frank and open in making admissions regarding previous applications.
The applicant has acknowledged wrongdoing.
6 Having regard to the applicant's past and present general conduct and based on the evidence before me I found that she is not of good character. As such she failed to satisfy me she passed the character test.
…
10 The applicant made false and misleading statements to the Department and provided bogus or false documents. These are offences under the Migration Act 1958 attracting a penalty exceeding 12 months imprisonment. I found the conduct was of a serious nature.
….
13 I found that conduct such as the applicant's was not uncommon in the caseload at the post. I found refusal of a visa would act as a general deterrent to those in the community who seek to obtain benefits that they would otherwise not by entitled to through illegal means. I found the grant of a visa would send a signal to the community that there are no penalties when detected providing false information and encourage others to do the same.
…
15 I found the applicant had displayed a disregard for Australia's law and breached the trust of the Australian community. I found her admissions of wrong doing were mitigated against by the fact that they came only after considerable resources were used in proving she had provided false information and was presented with irrefutable evidence.
….
17 I found the applicant was the spouse of an Australian citizen and refusal of a visa would be distressing to him and the applicant.
…"

the issues

The issues for determination in this application are:
· whether the Visa Applicant satisfies the Tribunal that she passes the character test as defined by section 501(6)(c)(ii) of the Migration Act 1958 ("the Act"); and
· If the Visa Applicant does not satisfy the Tribunal that she passes the character test, whether or not the available discretion should be exercised by the Tribunal to refuse to grant her a spouse visa.

the hearing

At the hearing of the application, the Review Applicant was represented by Mr Ron Kessels, solicitor, and the Respondent by Mr Zak Chami.
The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T50. There was, on behalf of the Review Applicant, written material which was also admitted into evidence and marked accordingly, namely:
Exhibit No     Description    Date
A        Letter from Dr Frances Parker (Senior Lecturer)           15 June 2001
B        Letter from the Hon Dr Peter Wong AM MLC     2 July 2001
C        Article from Sydney Morning Herald, "Sydney's forgotten farmers" 18 April 2001
D        Newspaper story of Applicant "Growers get the all clear"
E        Statutory Declaration of Sao Sunly       25 July 2001
F         Statutory Declaration of Hok Ngov          25 July 2001
G       Letter from Harry Milton "Learn to Live Again Counselling Service"
H        Statutory Declaration of Lim Vuoch Ly     23 July 2001

The Review Applicant, the Visa Applicant and Mr Hok Ngov gave oral evidence upon which they were each cross-examined.
relevant legislation and direction
The Act provides, with respect to refusal of a visa on character grounds, that pursuant to section 501(1) the Minister may refuse to grant the visa to a person if the person does not satisfy the Minister that the person passes the character test:
"(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…"
It is noted by the Tribunal that the words "good character", used in section 501, have been held to refer to the "enduring moral qualities of a person". The enduring moral qualities of a person necessitate objective assessment and are to be proved as a matter of fact (Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 431-432).
The relevant direction made under section 499 of the Act is Direction No 21, signed by the Minister and dated 23 August 2001. The Direction, as here particularly relevant, provides (T6, pp28-38):
"PART 1 – APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the character test
1.1 Non citizens who are being considered under section 501 must satisfy the decision-maker that they pass the character test…
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the character test, subsection 501(1) provides the authority to refuse to grant a visa…
1.3 There are four grounds against which a non-citizen may be considered to not pass the character test under subsection 501(6).
…
Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the character test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all relevant circumstances of a particular case, including any evidence of rehabilitation and recent good conduct.
…
Subparagraph 501(6)(c)(ii) – past and present general conduct
1.9. In considering whether a non citizen is not of good character against subparagraph 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 or misleading statement;
…
PART 2 – EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the character test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The government is mindful of the need to balance a number of important factors in reaching the decision whether or not to refuse or cancel a visa. In making such a decision, 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.
PRIMARY CONSIDERATIONS
2.3. In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and the members of community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian community
…
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of 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 deterrent).
a. the seriousness and nature of the conduct
2.6 It is the government's view that the following are examples of offences, which are considered by the government to be very serious:
…
(c) …providing certain false or misleading information about a marital, de facto, or interdependency relationship …or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen,…
- in assessing the compassionate claims of the Australian partner,… decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens) ..."

the factual situation

The Review Applicant was born in Cambodia on 1 May 1956, and first came to Australia in 1983, obtaining permanent residency on 21 July 1983. He became an Australian citizen on 17 December 1987. The Review Applicant first met the Visa Applicant in September 1995, whilst he was visiting Cambodia. He was introduced to her by Mr Hok Ngov, her brother-in-law, a close friend of the Review Applicant and at one time his business partner. The Review Applicant was at that time still living in a long-standing de facto relationship with his de facto wife and three children.
The Visa Applicant was born in Phnom Penh, Cambodia, on 6 February 1967. She first applied to visit Australia on 10 February 1998 and lodged the application with the Australian Embassy in Phnom Penh on 12 February 1998. She detailed her brother-in-law, Mr Hok Ngov, as the person in Australia who would be providing support to her, in the event of her visa being granted. The application for a subclass 676 visitor visa was refused by the Respondent, the Embassy in Phnom Penh not being satisfied that the Visa Applicant intended a genuine visit to Australia.
The Review Applicant and his de facto wife separated on or about 14 October 1996, their three children remaining with the mother. He says that thereafter he started communicating with the Visa Applicant, the same leading to their marriage in Cambodia on 7 November 1998. A few days later, on 18 November 1998, the Visa Applicant made an application for migration to Australia. She was assisted in the preparation of her application by the Review Applicant, in the course of which he was shown her passport in which was entered the name of Seng Sopheany as a child of the Visa Applicant (T44). He asked her about the child. She told him that she had caused the child to be shown and to be included in the passport in February 1998, preparatory to making her application for a visitor's visa to then enter Australia. She had done this, she said, in order try to improve her chances of obtaining a tourist visa. She admitted to her husband, the Review Applicant, that she was not the mother and the entry was false. The child was that of her aunt.
In her application for migration to Australia (T9) the Visa Applicant:
·     included as a family member, also wishing to migrate to Australia, Seng Sopheany, identified as her child born on 3 January 1992;
·     stated that the said child was in her care and that she had legal custody of the child; and
·     stated that she had previously been married to a Ros Sokheth on 15 March 1992, separating on 20 December 1992, the marriage then being dissolved by divorce.
In a further document, a "Notification of Incorrect Answers" (T27) of 23 December 1998, the Visa Applicant repeated the inclusion of Seng Sopheany as her dependent.
The Review Applicant was to sponsor the migration of the Visa Applicant to Australia. He filled out and lodged the relevant documentation (T11) in which he:
· specified Seng Sopheany, born on 3 January 1992, as a dependant family member of the Visa Applicant; and
· indicated that he was also sponsoring the alleged daughter's migration to Australia.
Particulars and documentation were sought of the Review Applicant and the Visa Applicant by officers of the Respondent referable to the sponsorship and proposed migration. In a statutory declaration sworn by the Review Applicant on the 18 of June 1999 (T14) he:
· stated that among the guests at their wedding were the Visa Applicant's parents, brothers and sisters and "her daughter";
· enclosed photographs said to have been taken at the wedding. Amongst the persons there shown was a girl said to be "her daughter"; and
·said that he proposed to spend the rest of his life with his wife "together with her daughter Sopheany, who was now my stepdaughter".
The Review Applicant and Visa Applicant obtained documents, which were forwarded to the migration officer in Phnom Penh, supportive of an immigration application, amongst which were:
·     a "birth certificate", certified by the District Governor (T19) referrable to Seng Sopheany, stating that the Visa Applicant was her mother and a "Dara" her father;
·     a document identified as "Statistics of members in the family" (T23) listing Seng Sopheany, born 1992, as her daughter and she as "mother";
·     a declaration signed by her on 24 February 2000, certified by a person said to be a Chief of Takhmao commune, in which the Visa Applicant stated (T30):
"I am Lim Vuochly sex female, age 33 years old, resident of Takhmao village Takhmao commune Takhmao district Kandal province. I have a daughter whose name is Seng Sopheany, and who has been brought up on my own, because her father Dara was not responsible soon after he knew that I was pregnant. He avoided seeing me. In order that my daughter has her own father, I went to Kampong Samnanh village, Kampong, Samnanh commune, where I was told he had been there. The Chieft [sic] of the village paid attention to the matter and said there was no name of Dara living in his village. Then on 15 March 1992 I got married to Ros Sokheth and on 20 December 1992 I got divorced because he was aware that I had had this daughter before marriage. On 7 November 1998 I married Sao Sunly, and he likes my daughter as his stepdaughter."

a statement under the hand of the Chief of Kampong Samnanh village (T31) to the effect that:
"…there is no name of Dara, whose father is Mak and mother is Leng, and who Lim Vuochly has looked for and claimed the father of the girl, Seng Sopheany. Dara used to tell her that he lived in Kampong Samnanh village, but in fact there has not been this name in the village."
a statutory declaration of Ngov Muykea, an aunt of the Visa Applicant (T32), in which she states:
"I, aunt of Lim Vuochly who worked as a nurse in Kandal province hospital, let her stay with me since 1985-1992".
At that time, Ms Lim Vuochly had relationship with a man call Dara until she got pregnant, and then he left her. On 03 January 1992 Lim Vuochly gave birth to a baby daughter Seng Sopheany. Because of Lim Vuochly's hardship in taking care of the daughter while working, I accepted Seng Sopheany to look after.
On 15 March 1992, Lim Vuoch Ly got married to Mr Ros Sokheth, and then got divorced on 20 December 1992 because of he discovered that she had had a baby before marriage.
On 7 November 1998 my niece, Lim Vuochly, got married to Mr Sao Sunly, and he accepted Seng Sopheany as his stepdaughter.
Lim Vuochly could not find anyone neither Mr Dara nor Mr Ros Sokheth to hold responsible for her daughter except for Ms Lim Vuochly and Mr Sao Sunly."
a letter from Ms Reba Meagher, the NSW State Parliamentary Member for Cabramatta (T34), in which mention is made of the Visa Applicant having "one daughter from her previous relationship", and the Review Applicant visiting "his wife and stepdaughter" in Cambodia. The State Member's assistance had been elicited, by the Review Applicant, in support of the migration application. She urged "favourable consideration of this application";
a letter dated 15 June 2000 from Dr Frances Parker, Senior Lecturer, Faculty of Social Inquiry of the University of Western Sydney (T35), obtained by the Review Applicant, by which Dr Parker "strongly" supported the Review Applicant's application to bring his wife "and her daughter SengSopheany [sic]" to Australia;
a letter dated 28 August 2000 from Mr Leigh James, District Horticulturist with NSW Agriculture (T38), in which he expressed extreme confidence that the Visa Applicant "and her daughter" would not be a burden on Australian tax payers and the social welfare system. He was supportive of the migration application; and

photographs of the child said to be the daughter of the Visa Applicant.

Field visits were conducted by officers of the Respondent, as a result of which, on 17 November 2000 (T40), they reported that the Visa Applicant did not have any children, and that the child pictured in the photographs was not the daughter of the Visa Applicant, but of her aunt Nov Nhor. These matters were put to the Visa Applicant during an interview conducted on 10 January 2001, at which time she maintained the contention of having a daughter whose father was Dara and who was the cause of the breakdown of her 1992 marriage. She further maintained that the child was "my real blood daughter" and spoke of the social stigma of having a child out of wedlock (T43).
On 10 January 2001, an officer of the Respondent, by letter to the Visa Applicant (T43, p134-135), expressed "serious concerns about the real identity of your claimed natural child". The officer detailed information then in possession of the Respondent and suggested and offered DNA testing, to establish whether there was a parent/child relationship as claimed. The Visa Applicant attended the Respondent's office in Phnom Penh on 31 January 2001 and informed officers as follows (T46):
"...
She replied: " I came to tell you that my daughter is not really mine – she is the daughter of my aunty"
Q1.      Why did you mislead DIMA in this way?
A.        Because I am old and do not have a child of my own. My daughter is now eight years old and I adopted her when she was 4…
….
Q2.     Was your husband aware of the true relationship?
A.        My husband was not aware."
On 31 January 2001 the Respondent received a further form, completed by the Review Applicant as sponsor on 17 January 2001 (T48). The child was still shown as being a dependent of the Visa Applicant.
The Visa Applicant was requested to attend a further interview with officers of the Respondent, which was conducted on 16 February 2001 (T49). Again she maintained that the child had been adopted by her. She did not undergo DNA testing. Her application was refused.
In her evidence before the Tribunal, the Visa Applicant has admitted that the child is not her daughter, nor did she ever adopt the child. She stated (Exhibit H):
"…
I did not intend to lie to the embassy about the child, after I have put the application to go to visit Australia, I heard that if I put that I have a child, the embassy would approve it, but unfortunately my application was rejected. After married to Sun Ly, I had put a new form as a visitor, when the embassy interviewed me I still answered that Seng Sopheany is my child.
Hok and Avy had given the idea of sponsoring me to came to Australia as a visitor in February 1998 and my aunty (Mouy Kai) … had agreed, that I could put in the form that her daughter is my own child.
After I got married with my new husband, he knew that I had no children. But at the time of filling the form, my husband had seen that in the previous document that I had a child so he just copied from the old form.
My aunty fully supporting the application, because she hoped that her daughter would have a good future in Australia, and also Avy [the Visa Applicant's sister living in Australia] would support her daughter as well…."
In his evidence before the Tribunal the Review Applicant (Exhibit E) inter alia stated:
"…
7. I believed that there would be a problem if we tried to remove the child from the passport and the family book, as the Department of Immigration already had information (or so I believed), that my wife had a child. I raised this with Vuoch Ly's family and there was a lot of discussion about whether it would be better to remove the child from the documents or whether this would jeopardise the whole application. I knew that it was wrong to even think of pretending that the child was hers, but we were desperate to be together in Australia and I could not see any other way out of the problem."
8. I spoke to the child's mother and father (Muy Kea Ngov and Pol Thov) and, although they were obviously very sad at the prospect of losing their child, they were very keen to ensure that the child had the best possible chance at a prosperous life and were happy to agree to us including the child on the application."
9. We then decided not to change the family book or the passport and to attempt to deceive the Department into believing that the child was a child of my wife. I know this was very wrong and I'm truly sorry for what we did. I really could see no way out of the problem. I was desperate to have my wife here and had nothing to do with the family's initial decision to include the child on the passport. I felt that it was too risky to tell the Department what she had done. I thought that they would reject her application for having tried to deceive them on the Tourist Visa. Also, I believed that the family really wanted the child to have a better life in Australia. Whilst I did not really want the child to come, I would have loved her and looked after her if she had.
…
11. I realise that what we did was very wrong and that the Department of Immigration has a right to treat it seriously. I believe that my wife and I are good people. I have spent many years trying to help my community in Australia… We made a very stupid and wrong decision, but, as I have explained, I felt that there was really no alternative and I take full responsibility for what happened… and I sincerely promise that nothing like this will ever happen again."
The brother-in-law of the Visa Applicant, Hok Ngov, lives in Australia. In a Statutory Declaration (Exhibit F) he says:
"…
6. In discussing the making of the application for a Tourist Visa [one where the Visa Applicant could come to Australia] my wife and I discussed the fact that it would be easier for a single women coming from Cambodia to be granted a Tourist Visa, if she had a child which was to remain behind in Cambodia during the visit. We knew this from our discussions with other people in the Cambodian community in Australia, who had had similar experiences with Immigration.
7. I cannot recall whether it was my wife or myself who first suggested the idea of including a child in the Visa Applicant's family book and passport, but I confirm that it was our idea originally and not that of the Visa Applicant.
8. Subsequent to these discussions, and prior to the application for the Tourist visa, the Visa Applicant told me that she had spoken to her maternal aunt, Muy Kea Ngov and her husband, Pol Thov, and that they had agreed to her including their child, Ky Kanika (aka Seng Sopheany) in the Visa Applicant's family book and on her passport. As I understood it, there was no agreement or intention at that time for the child to travel to Australia."
In the course of his cross examination, Mr Hok Ngov said that he had spoken to many people of Cambodian origin and had been informed that if it could be shown that a single woman had a child, which she had left behind in Cambodia, that this would make it much easier for her to obtain a visa to enter Australia.
The Review Applicant is, by occupation, a self-employed market gardener. Evidence before the Tribunal is to the effect that he has played a significant role in gathering together other Cambodian vegetable growers into a form of cooperative, resulting in more effective farming, production of better quality foodstuffs, and efficient marketing. He is said (Exhibit G) to have worked "tirelessly in an effort to help and educate" Cambodian people "in the area of organic farming".
He has been, and is very much, involved in the Australian–Cambodian growers Association and has received awards and recognition for the assistance he has afforded to the other Cambodian refugees. The Honourable Dr Peter Wong AM MLC speaks (Exhibit B) of the Review Applicant's sincerity and integrity and his commitment to serving the Cambodian community in Western Sydney.
as to the character of the visa applicant
Mr Kessels, on behalf of the Review Applicant, accepts that the Visa Applicant does not pass the character test.
The Visa Applicant engaged, from February 1998 to 16 February 2001, in a deliberate strategy intended to mislead the officers of the Respondent in the carrying out of their duties. But more so. She persuaded others to aid and abet her falsities. She obtained false documentation, which she provided to the Respondent. She involved her husband, her aunt, her sister and brother-in-law in her endeavours.
The various representations so made by the Visa Applicant have been set forth earlier in these reasons. Each was false. It is an offence to mislead and deceive a person exercising powers in performance of their duty, under the Act and the Regulations, and for a non citizen to present a document which is false or to give information which is false or misleading in a material particular (sections 234, 487 of the Act). The Visa Applicant's presentation of the false documents, the false declarations made by her, in relation to the parentage of the child, lead to the irresistible conclusion that the Visa Applicant is not of good character. Her history, as earlier detailed in these reasons, of migration deceit and the provision of false and misleading information, and her reliance upon the false documents and misleading information over a period of three years, is further evidence of this situation.
The concept of good character in section 501 of the Act is concerned with whether a Visa Applicant's character, in the sense of her enduring moral qualities, is so deficient as to show it is for the public good to refuse the grant of a visa (see also Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321). But more so is the consequence to the public good and welfare of a commission by an applicant of conduct the like of that engaged in by the Visa Applicant. The various forms completed by the Visa Applicant and the Review Applicant require the parties to acknowledge the need to be honest and truthful in the answers they give to questions, and the information provided in such forms. As was noted in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, it is of fundamental importance to the control mechanism relevant to migration, which Australia exercises in visa applications, that there be an observance of truth in dealing with officials in relation to migration matters. This is particularly so where the truth is known only to the person making the statement. To not tell the truth, to endeavour to mislead migration officials over a period of time, is to 'subvert the administration' and demonstrate that the person responsible is not of good repute or good character. There could be little confidence that the person would not again transgress in matters where truth and good faith could be deceptively withheld.
In this matter, the Visa Applicant made false statements and submitted false documentation, in connection with her visitor visa application and her spouse visa application, and maintained and perpetuated the falsity that she was the mother of Seng Sopheany up until January 2001. Even then, she created a further falsity in contending that she had adopted the child.
There can be no doubt in this matter that the Visa Applicant is not of good character.
hardship to the review applicant
The Review Applicant has, on the basis of the evidence before the Tribunal, been, and still is, a significant force for the carrying out of constructive agricultural work by the Cambodian community in western Sydney. He has gathered together other Cambodian refugees and forged a viable and worthwhile endeavour. He has made and is still making a measurable contribution to the agricultural welfare of the community.
However, he has also sought for personal reasons, to mislead officers of the Respondent. By his own writings, in support of the Visa Applicant's application, he asserted, well knowing the same not to be true, that his wife had a daughter. He provided false Information to people who held him in high regard, and who he knew would use that false information in the references they provided. He deliberately misled them, and also sought to mislead the Respondent. He knew, or should have known, that he was a party to a breach of the Act and Regulations.
If the relevant decision is affirmed, the Review Applicant will return to Cambodia, "I have no choice" he said, " I married her, I have to go back". The Tribunal appreciates that the relationship between the Review Applicant and the Visa Applicant is genuine. It accepts that hardship will be experienced by them in the event of the decision under review being affirmed. The hardship which will be experienced by the Review Applicant must be seen in light of the part he played in the misleading conduct. He maintains that if the true situation had been initially revealed, his wife's application may have been refused. On the other hand, if the facade was allowed to remain, and the Respondent did not ascertain the true position, the chances were more favourable in her being allowed to migrate to Australia. A person in the position of the Review Applicant, held in high regard and esteem by members of the Cambodian community, as well as others, was mistaken in choosing the course that he followed. A truthful presentation on his part and that of the Visa Applicant would have reflected favourably upon their characters.
family dispostion
The Visa Applicant has a sister and brother-in-law, with their family, living in Australia. Her parents, two other sisters and two brothers all live in Cambodia. She has, apart from her husband and sister, no other relatives in Australia.
The Review Applicant has his former de facto wife and their three children, now 21 years, 18 years and 16 years of age, living in Australia. He has regular contact with them "on good terms with my former wife" and paying child support. He says it would cause " great hardship" to himself, to his former wife and his children if he "was forced to leave Australia and live with my wife in Cambodia".
There is one child of the de facto relationship under the age of 18. Even though the Review Applicant is not living with his children he sees them quite frequently. They no doubt have an attachment to him. There is no evidence before the Tribunal as to the benefits that are conferred upon the children, particularly the youngest child, by reason of there having contact with their father. However, notice may be taken of the benefit accruing to a child who has regular contact with that child's parent or parents. This is a matter that is to be considered by the Tribunal in the totality of the various considerations that fall for review.
submissions and decision
On behalf of the Review Applicant, it was submitted that the choices that faced the Visa Applicant were each "unpalatable". There was a fear on the Visa Applicant's part that the initial deception would be discovered, her visa application would be rejected and she would not be able to come to Australia to live with her husband. On the other hand, she could attempt to continue the deception and hope that it was not discovered. This would avoid the prospect of rejection on the basis of changed information and would give the child opportunities not available to her in Cambodia and which the child's parents were anxious to ensure she had, if at all possible. The Visa Applicant chose to attempt to continue the deception, and in doing so she made false statements and lodged false documents. It was submitted that she accepts this was wrong and her conduct demonstrated "extremely poor judgement" on her part. However, it is contended that she is otherwise a person of "very good character" and her actions should be "seen as out of character rather than demonstrating a moral deficiency".
The Tribunal does not see the Visa Applicant's conduct in this light. There is a litany of false representations and provision of false documents. The documents came into existence by reason of the Visa Applicant collaborating with members of her family, and inducing others to accept the false representations as being truthful and declaring accordingly. Thus, the Visa Applicant not only sought herself to mislead the Respondent, but sought to use others to the same end.
Be it that the Visa Applicant is not of good character, it was submitted that the Tribunal should exercise the discretion available to it in favour of her. It was contended that the factors relevant to the exercise of the discretion favourable to the Visa Applicant outweighed her character defect. Mention was made of the Review Applicant having three children living in Australia, their interest, and particularly the interest of the youngest being adversely affected if the Review Applicant should return to Cambodia. The relationship between the Visa Applicant and the Review Applicant was said to be genuine. The Review Applicant has "extremely strong ties to Australia" and it was said he has no ties to Cambodia. The latter may not be in accord with the evidence.
There can be no doubt that the Review Applicant has strong ties to the Australia Cambodian community, and his work in various capacities is evidence of this. There would be an adverse impact upon the Australian community in the event of the Review Applicant returning to Cambodia. The Visa Applicant has a sister and brother-in-law living in Australia.
It was said that the purpose of section of 501 of the Act is to protect the Australian community from harm and not to provide penalties for alleged breaches of the Act. This may well be so. But protection of the Australian community may also entail preventing conduct the like of that committed in this matter being committed by others and perhaps successfully so. The Tribunal is satisfied that, having in mind the number of people involved by the Visa Applicant in her falsities, there would be a likely deterrent effect from the fact of the visa being refused.
Likewise with the Review Applicant. The evidence indicates that he is held in high regard by the Australian–Cambodian community. He is also held in high regard by professional people working in the area of western Sydney. He engaged in the falsities already detailed. This may become known to members of the community, the consequences of which would be appreciated.
On behalf of the Respondent, it was contended that the conduct engaged in by the Visa Applicant was very serious and fell clearly within the conduct highlighted in the Minister's Direction No 21. For a person to deceive or mislead, or endeavour to deceive or mislead, persons exercising powers or performing duties under or for the purposes of the Act or Regulations, is of the nature of such conduct and so regarded by the Australian community. There is no room to doubt that the false and misleading statements and the provision of false documentary material by the Visa Applicant, with the express intention of obtaining the grant of a visa, was conduct that warrants serious adverse consideration. If she be granted a visa, this, it is said, would validate the lies perpetuated by her and the forged document presented. The Tribunal concurs with this submission. If it should become known that the consequences of her conduct have resulted in the refusal of a visa, in the light of the evidence given in this application, other people would or may be generally deterred from concealing the truth or perpetuating falsities.
It was further submitted on behalf of the Respondent that, based on the Visa Applicant's history and behaviour, there is a real likelihood that she would again engage in conduct falsely declaring matters if the same was advantageous to her.
The Tribunal accepts that the Australian community would expect a person who engaged in conduct the like of that engaged in by the Visa Applicant, to not be permitted to obtain a benefit by her deception and be granted a visa. The visa process is clearly documented. There is a procedure detailed that persons seeking to be granted a visa to enter into, and remain in, Australia, should follow. There is an integrity sought to be maintained. In this matter, the Respondent's officers were required to engage in extensive enquires, a field visit and other time consuming and resource intensive investigations, in order to uncover the strategy sought to be put in place by the Visa Applicant.

Mention has already been made in these reasons of the family composition and associations of the Visa Applicant and the acceptance by it of the marriage between she and the Review Applicant as being genuine. Hardship will no doubt result if the decision is affirmed.
As it is required so to do, the Tribunal has given consideration to each of the factors detailed in the Minister's Direction No 21. It has sought to give appropriate weight to these factors. It is however mindful of the nature of the falsities and the period over which they were committed. It is also mindful of the benefit sought to be obtained by the Visa Applicant and the Review Applicant, by the use of these falsities.
It cannot be stressed too highly that there is a need for applicants to be honest and straightforward in information they provide to officers of the Respondent. Where it can be shown that there has not been an appreciation of this need, that with full awareness of the falsity the same was maintained over a lengthy period, that an applicant provided false information to others and sought with the use of that information to support an application, and where an applicant has used other people and involved other people in the falsities, the Tribunal cannot conclude otherwise than that the conduct was extremely serious in the context of the factors detailed in Direction 21.
For the reasons herein before set forth and having considered all of the relevant factors and the weight to be given to them, apposite to a discretionary decision, the Tribunal is satisfied that the decision under review should be affirmed.
The decision under review is affirmed.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, Q.C., Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  3 September 2001
Date of Decision  4 October 2001
Solicitor for the Applicant         Mr R Kessels
Solicitor for the Respondent    Mr Zac Chami