Ta and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 175
•24 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 175
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/257
GENERAL ADMINISTRATIVE DIVISION ) Re Ta Heng Try Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date24 February 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a new decision that Kha Sopheavy passes the character test pursuant to s 501(6) of the Migration Act 1958.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 spouse (provisional) visa – character test – examination of the Visa Applicant’s past and present general conduct – examination of the Visa Applicant’s immigration misconduct – discretion that the Tribunal may apply where the Visa Applicant fails the character test – Visa Applicant found to pass the character test - decision of the Respondent set aside.
Migration Act 1958 ss 499, 499(1), 501, 501(1), 501(6), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Re Dam and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 649
Re Hout Kouch andMinister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 233
Re Sharon Jupp andMinister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 458
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
24 February 2003 Mr RP Handley, Deputy President 1. This is an application by Ta Heng Try (“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 4 January 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to Mr Ta’s spouse, Kha Sopheavy (“the Visa Applicant”).
2. At the hearing, the Applicant was represented by Ray Turner, Solicitor, of Yandell Wright Stell, Lawyers, and the Respondent was represented by Karen Gettens, Solicitor, of Blake Dawson Waldron, Solicitors. The documents before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the Applicant. The Applicant gave evidence in person and the Visa Applicant gave evidence by conference telephone.
Background
3. The Applicant, Mr Ta, was born in Cambodia on 3 July 1966 and is aged 36. On 16 January 1994, Mr Ta married Sok Yeng Chhai, who was born on 21 June 1965. That marriage ended in divorce on 12 January 1997. There were no children of the relationship. Mr Ta arrived in Australia on 17 September 1993 and became an Australian citizen on 21 August 1996. He suffers from schizophrenia.
4. The Visa Applicant, Ms Kha, was born in Cambodia on 1 February 1975 and is aged 28. She presently resides in Cambodia. She is employed as a doctor at an animal hospital and as an accountant for a construction firm.
5. In early 1999, Mr Ta was shown a photograph of Ms Kha by a friend, Nun Neav, who had just returned from Cambodia having met Ms Kha there. Mr Ta said that he was interested in Ms Kha straight away and began communicating with her by telephone and letter. In early 2000, Mr Ta decided to go to Cambodia and meet Ms Kha. On the 6 April 2000, they met for the first time in Phnom Penh and then went on a short holiday together, during which time they realised they were in love. On 11 April 2000, Mr Ta proposed to Ms Kha and the next day, after having obtained her family’s blessings, she accepted his proposal. They were married in Phnom Penh on the 14 April 2000. On 26 April 2000, Mr Ta returned to Australia.
6. On 11 July 2000, Ms Kha lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Phnom Penh. On 13 December 2001, Ms Kha was interviewed in Phnom Penh by a Senior Migration Officer from the Embassy. On 2 January 2002, both Mr Ta and Ms Kha were interviewed by a Migration Officer. On 4 January 2002, a delegate of the Respondent decided to refuse the grant of a subclass 309 visa to Ms Kha. On 19 February 2002, Mr Ta lodged an application for a review of this decision with the Tribunal.
Relevant Law and Policy
7. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character;…
8. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
9. 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”..
10. 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 the 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.
11. The issue for the Tribunal to determine in this case is, therefore, whether Ms Kha is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must consider exercising the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Ta Heng Try (the Applicant)
12. Mr Ta is an electrician living in Marrickville in Sydney at his sister’s house. He said he completed his wife’s migration application form with the assistance of a Migration Agent, Wayne Chan, to whom he gave all the relevant documents. Mr Ta obtained the application form in Cambodia, completed it in draft in his own handwriting (A1), and then gave it to Mr Chan who had the application typed and took it to Cambodia for Ms Kha to sign.
13. Mr Ta said he completed the answer to question 57 of the application form listing the applicant’s partner’s parents and siblings. This lists Mr Ta as having one brother, Ta Heng Leng, living in Australia and four other deceased siblings. Mr Ta completed the answer to question 35, listing his wife’s parents and six siblings, based on the Family Book his wife had provided for him.
14. Mr Ta said he suffers from schizophrenia for which he is treated with injections of Flupenphixol every three weeks. His most recent visit to Cambodia was in September 2002 when he went for six weeks. While he was there, his wife arranged for him to be treated at a hospital in Phnom Penh. However, the medication injected was different and did not work so well. He noted that the medication was past the expiry date stated on the bottle. After the injection, he felt restless, could not sleep, his heart was pumping very fast and he felt shaky. He went back to the hospital and the doctor injected him with some medication to help him sleep.
15. Mr Ta acknowledged that apart from Ta Heng Leng, he has two sisters and a brother living in Australia, all in Marrickville, who have all been in Australia for more than 10 years. He lives with his oldest sister. Mr Ta was originally accepted as a refugee in France. When his ex-wife sponsored his migration to Australia from France, he did not know his three other siblings were in Australia. He changed his name from Ly Hong Meng to Ta Heng Try and omitted his three other siblings from his migration application form. Mr Ta said when he filled out the migration application form for his wife, he was aware of his other three siblings being in Australia but omitted them in order to be consistent with his own migration application and the information provided by his sponsor. Before he and his wife were married, Mr Ta wrote to Ms Kha telling her of his former name and his other siblings. This was among the letters she took to the Australian Embassy in Phnom Penh in order to establish the genuineness of their relationship.
16. Mr Ta said he remembers signing his will. His Migration Agent told him he should complete a will in favour of his wife. He signed his will in Australia. The Migration Agent took his wife’s will to Cambodia for her to sign. She would have signed it after 20 June 2000.
Kha Sopheavy (the Visa Applicant)
17. Ms Kha said her husband sent her a draft migration application form which she got her neighbour to translate for her. She completed parts of the draft form and returned it to her husband who gave it to Wayne Chan who works for her husband’s Migration Agent. He had the form typed and brought it to her for her to sign. The only section of the form he discussed with her was that concerning the members of her family. Her husband had explained parts of the form to her and Mr Chan said she did not need to have the form translated. Nobody read all the answers on the form to her before she signed it. She does not remember the date on which she signed the form. When she signed the form, she understood the nature of the form and that it had to contain the truth. Ms Kha said she only speaks and understands very little English. She did not pay much attention to the names on the application form. She assumed the names of her husband’s family members on the form were correct. She acknowledged that it was her mistake that she did not insert her husband’s previous name on the form. Her husband had told her of this in correspondence before they met.
18. Ms Kha said she first found out that her husband had sisters and a brother in Australia after their wedding, in 2001. He told her that, in total, he had six brothers and sisters but that two had passed away. Ms Kha said she remembers reading the two statutory declarations by Ly Hue Keng (T p100) and Ly Hue Gec (T p104) which were attached to her migration application but did not disclose their relationship to her husband. Ms Kha did not know they were her husband’s sisters until after the migration application form was lodged.
19. Ms Kha said her husband translated her will for her before she signed it. She understood that if she died, she was leaving everything to her husband. Wayne Chan was present at the time she signed her will, which was on 12 July 2000. Judy Ly was not present. She cannot recall whether Ms Ly had already signed the document.
SUBMISSIONS
Applicant
20. Mr Turner, for the Applicant, contended that Ms Kha had not knowingly made any false or misleading statements. She has a poor understanding of English and nobody read the form to her before she signed it. Ms Kha was full and frank in disclosing information to the Embassy including providing the letter in which Mr Ta informed her of his previous name. She was not aware of her husband’s other siblings at the time the migration application form was lodged. In any event, Mr Turner questioned whether details of her husband’s previous name and his siblings are relevant to Ms Kha’s character.
21. Mr Turner acknowledged that Ms Kha’s will is not valid because it was not executed on 20 June 2000, as stated. There is also doubt over whether Judy Ly witnessed Ms Kha’s signature. However, the will is not fraudulent or forged as suggested by the Respondent.
22. Mr Turner said the statutory declarations by Mr Ta’s two sisters were not fraudulent although they omit to say they are Mr Ta’s sisters. Such an omission is also not relevant to Ms Kha’s Character. With regard to Mr Ta’s statutory declaration dated 12 February 2001 (T p225), Mr Ta has explained that he felt compelled to answer as he did in order to be consistent with the information supplied with his own migration application. This statutory declaration is not material to his wife’s application and there is no evidence to establish that she knew it contained false information.
23. Mr Turner referred to the record of interview for Ms Kha on 13 December 2001 (T18). He noted that Ms Kha was forthright in volunteering information to the interviewer. She made no attempt to hide anything. Similarly, at the second interview on 2 January 2002 (T27), she made no attempt to hide anything and was forthright in providing information. Mr Turner submitted that there is nothing to indicate that Ms Kha is not of good character.
24. With regard to Direction No 21, Mr Turner noted that the offence of making a false or misleading statement under s 234(1)(b) of the Act requires that the person knowingly made or caused to be made a false or misleading statement. This was not the case with Ms Kha. Mr Turner referred the Tribunal to the preamble to the Direction, the stated object being to protect the Australian community “from criminal or other reprehensible conduct.” Ms Kha’s conduct was not of this nature, nor were her actions “so abhorrent to the community” that she should not be allowed to enter Australia.
25. Mr Turner noted that in Re Dam and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 649, Deputy President Estcourt, in a case involving more serious allegations than in the present case, was “significantly influenced” by the open and honest manner in which the applicant answered questions in the course of her Embassy interviews. Mr Turner also referred the Tribunal to its decision in Re Hout Kouch and Minister for Immigration Multicultural and Indigenous Affairs [2000] AATA 233 where, once again, the allegations were more serious than in the present case, and the Tribunal found the visa applicant relied on her husband who completed the migration application form.
26. In Re Sharon Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 458, Deputy President Block noted that the Australian community would expect Direction No 21 to be interpreted “in a humane fashion” (para 7(m)). Finally, in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67 – 68, Deane J noted the well-established principle:
that findings of fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation.
Mr Turner submitted that in present case there is no evidence of misconduct to warrant Ms Kha failing the character test.
27. With regard to the exercise of the s 501(1) discretion, Mr Turner submitted that Ms Kha poses no risk to the Australian community and that the community, when informed of the relevant facts, would take a humane view of her situation and not take the view that she should be excluded from Australia. With regard to other considerations, Mr Turner noted that Mr Ta suffers from schizophrenia for which he is being treated by a psychiatrist, Dr Greenaway (A2). Mr Ta needs regular treatment of a kind which he would have difficulty obtaining in Cambodia.
Respondent
28. Ms Gettens, for the Respondent, submitted that Ms Kha does not pass the character test. In signing her migration application form, Ms Kha understood the need to be truthful and must accept responsibility for the false and misleading statements in her application. Ms Kha did not pay attention to Mr Ta’s siblings as stated in the application form, nor to Mr Ta having previously used another name. These are material particulars which the Department spends considerable time and expense investigating. At the time of the application, she was aware of his having used another name and the Respondent suggests she probably knew of Mr Ta’s other siblings. While the Respondent acknowledges Ms Kha is not fluent in English, she may have had some understanding, and both her husband and her neighbour translated the document for her.
29. Ms Gettens submitted that Ms Kha should have been aware that the two statutory declarations of Mr Ta’s sisters were not full declarations and that by lodging such misleading documents, she committed an offence under s 234(1) of the Act. Although this misconduct was contributed to significantly by her husband, she still bore the responsibility.
30. With regard to the exercise of the s 501(1) discretion, Ms Gettens contended there is a real risk of repetition of the misconduct. The refusal of a visa in such a case would send a clear message to others that such misconduct is not acceptable to the Australian community. The community would expect such a person would not be permitted to enter and remain in Australia.
31. Finally, with regard to other considerations, Ms Gettens submitted that little weight should be given to any hardship to Mr Ta arising from the refusal of a visa to Ms Kha since he contributed significantly to the misconduct. The Respondent does not contest the genuineness of the marriage but contends that Mr Ta could return to Cambodia to be with his wife. Ms Gettens commented on the lack of information about Mr Ta’s medical condition and the nature of the treatment which would be available in Cambodia.
Consideration of the Law and Findings
32. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Kha passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
33. 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 does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that 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.
34. 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 relevantto 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)).
35. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. Based on Ms Kha’s evidence and that of Mr Ta, the Tribunal finds that Ms Kha did not knowingly make false or misleading statements or lodge forged or false documents in connection with her migration application. The Tribunal accepts Ms Kha’s evidence that while she was aware at the time she signed the application form that her husband had previously used another name, she was not aware until 2001 of his having other siblings. Thus, she could not have been aware that the statutory declarations by his sisters dated 30 May 2000 (T p100) and 3 July 2000 (T p105) were not “complete” in so far as they did not reveal the nature of their relationship with Mr Ta.
36. With regard to the wills included with Ms Kha’s migration application, the Respondent has contended that Ms Kha provided a fraudulently executed will in support of her application. As Mr Turner acknowledged, Ms Kha’s will, purportedly executed on 20 June 2000 (T p93), appears not to be valid because, on Ms Kha’s evidence, it was executed on 12 July 2000, and because it seems likely that one of the witnesses, Judy Ly, was not present when Ms Kha signed the document. However, although the will is clearly invalid, it is not forged or fraudulent and, in the Tribunal’s view, it is very unlikely that Ms Kha was aware of its invalidity.
37. It was apparent at the hearing that Ms Kha speaks very little English. She relied on her husband and his Migration Agent to complete her migration application form. While the form was explained to her by a neighbour and by her husband, the Migration Agent, Wayne Chan, did not translate the questions and answers in the completed form to her before she signed it. Ultimately, as Ms Kha acknowledged, she must bear responsibility for the application. Nevertheless, her lack of knowledge of any incorrect information in the form is a relevant consideration and the Tribunal finds she was not aware that she should have inserted her husband’s previous name in answer to question 45 of the form (T p41). It appears that Ms Kha included the letter in which her husband explained his change of name to her with the bundle of correspondence she provided to the Embassy as proof of the genuineness of her marital relationship with her husband.
38. The Tribunal also notes that Ms Kha was open and frank in answering questions put to her in the course of her two interviews with an officer at the Australian Embassy in Phnom Penh (T18 and T27). In particular, the record of the interview on 13 December 2001 (T18) does not indicate to the Tribunal that she attempted to conceal information – she answered the questions put to her in a forthright manner.
39. There is no other evidence as to bad character. The Tribunal notes the test as to good character, formulated by the Full Federal Court in Goldie, which emphasises that the character test 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”.. In the Tribunal’s view, there is no evidence of any substance to establish that Ms Kha’s character is so deficient as to be for the public good to refuse her entry. She has not committed any reprehensible conduct and poses no risk to the Australian community. The Tribunal therefore determines that Ms Kha does not fail the character test by reason of her past and present general conduct and, pursuant to s 501(6), passes the character test.
40. For the sake of completeness, the Tribunal notes that the evidence of Dr Greenaway (A2) supports a finding that Mr Ta suffers from schizophrenia, for which he needs regular and ongoing treatment. While the Tribunal notes Ms Gettens’ comments about the lack of specialist evidence as to whether similar treatment is available in Cambodia, it also notes Mr Ta’s evidence of his experience of receiving unsatisfactory treatment for his condition while in Cambodia in September/October 2002.
41. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Kha Sopheavy passes the character test pursuant to s 501(6) of the Act.
I certify that the preceding 41 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 17 February 2003
Date of Decision 24 February 2003
Solicitor for the Applicant Mr R Turner
Solicitor for the Respondent Ms K Gettens
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