Touch and Minister for Immigration and Multicultural Affairs
[2002] AATA 243
•12 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 243
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/752
GENERAL ADMINISTRATIVE DIVISION )
Re SETH TOUCH
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date12 April 2002
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
IMMIGRATION - refusal of visa on character grounds - false and misleading conduct in dealing immigration authorities - exercise of discretion to grant visa notwithstanding bad character - interest of applicant - hardship - decision to refuse affirmed.
Migration Act 1958 – s501
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
REASONS FOR DECISION
12 April 2002 Mr S P Estcourt QC., (Deputy President)
This is an application to review a decision of a delegate of the respondent dated 17 May 2001 to refuse to grant a Sub-Class 309 "Spouse (Provisional)" to Maly Min ("the visa applicant") on the ground that she did not meet the character test within the meaning of s501 of the Migration Act 1958 ("the Act"), and did not persuade the delegate to exercise the residual discretion under that section to nonetheless grant the visa.
I find that the visa applicant was born in Cambodia on 5 October 1948 and there married her first husband. The couple had four children of their own and adopted a fifth child.
I find that the visa applicant's first husband died in October 1997, possibly as a result of mistreatment while in custody for political reasons.
On 16 December 1997 the visa applicant arrived in Australia on a tourist visa. While in Australia she applied for a protection visa which was refused on 16 May 1998.
On 23 May 1998 the visa applicant married the applicant and the couple travelled to Bangkok, where on 11 September 1998 the visa applicant lodged the current application for a spouse visa.
In her evidence to the Tribunal, the visa applicant said that her husband was responsible for the preparation and submission of her tourist visa application, but she accepted that she was aware that some, although not all, of the documents submitted in support of that application were false.
In particular, the visa applicant accepted that she stated in her tourist visa application that she wanted to come to Australia to visit relatives, but the real reason she left Cambodia was to escape that country with the intention of living in Australia permanently. She said that she knew that was the real reason she was applying for the tourist visa.
The visa applicant also accepted that she falsely understated the number of her children in the family book, which was submitted with the application for the tourist visa, because she thought to state the true position might prevent her from getting the visa.
Whilst however the visa applicant accepts that she knew that the family book submitted with her visa application was false, she was less accepting of her knowledge of apparently false insurance patent and licence documents submitted with her tourist visa application, which sought to show that she was the owner of a construction material and furniture shop.
10.It seems that the visa applicant was not the owner of that business and those documents were false, although it is not entirely clear from the evidence as to the extent of her knowledge concerning those documents.
11.Notwithstanding that there is nothing to prevent a person coming to this country on a tourist visa and then making a genuine application for a protection visa, I am satisfied in this case that the applicant falsely stated in her tourist visa the reason for her proposed visit to Australia, and falsely provided a false document in the form of a family book in support of that application.
12.On the basis that the visa applicant provided false information to migration officials in her tourist visa application, the Tribunal finds that she does not pass the character test under s501 of the Act.
13.Ministerial Direction No.21 issued for the guidance of decision-makers, including the Tribunal, provides that in the absence of any countervailing factors, the provision of such false and misleading material constitutes a failure to pass the character test.
14.I have considered the desperation which must have been experienced by the visa applicant in escaping from Cambodia, and the fact that her husband was obviously largely instrumental in preparing and submitting the visa application. I have concluded however that these are not sufficient by way of countervailing factors to prevent the visa applicant from failing the character test. In the first place, the respondent and the Refugee Review Tribunal obviously did not accept that the applicant had sufficient grounds to justify the grant of a protection visa and secondly, evidence before the Tribunal from a monk, the Venerable Liv Peo, was to the effect that as a married woman, the visa applicant would have acted depending on discussion with her husband and agreement between both of them and that if there was any objection she would not act.
15.Not only does Ministerial Direction No.21 provide that in the absence of any countervailing factors the provision of false and misleading material constitutes a failure to pass the character test, it is clear from s234 of the Act, that the offence comprised in making a false or misleading statement or, furnishing a document containing a false or misleading statement, in connection with an application for a visa is serious. A breach of that section carries a penalty of 10 years imprisonment or a fine of $110,000 or both.
16.The visa applicant's conduct in relation to her tourist visa application, in the Tribunal's judgment, renders her not of good character on account of past general conduct.
17.Turning to the Tribunal's residual discretion under s501 of the Act to nevertheless grant a visa in the face of bad character, Ministerial Direction No.21 requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of "other considerations".
18.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 relationship between a child or children and the person under consideration, the best interests of the child or children.
19.As these proceedings do not involve any relevant parental relationship, the only relevant primary considerations are the protection of the expectations of the Australian community.
20.Relevant "other considerations" in this case include the genuine relationship between the applicant and the visa applicant, and the degree of hardship which would be caused to immediate family members lawfully residing in Australia (including Australian citizens), whether the immediate family members are able to travel overseas to visit the non-citizens, the nature of the relationship between the non-citizens and the immediate family members, whether immediate family members are in some way dependent on the non-citizen's family, both in Australian and overseas and evidence of any rehabilitation or any recent good conduct.
21.A consideration of the first of the primary consideration, 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 might be repeated;
(c)the likelihood that visa refusal would prevent like offences by other persons.
22.The Australian government according to Direction No.21 regards serious offences against the Act as very serious. Indeed I have already pointed out the penalty provisions for a breach of s234 of the Act.
23.It is unlikely that the visa applicant would repeat her conduct given that her application is now for a permanent visa, however the remaining consideration of general deterrence is relevant. If the visa applicant is refused entry because of her past breaches of this country's migration laws, other persons may be less minded to do so.
24.As to the expectations of the Australian community, it must be trite to say that the community expects non-citizens to obey its migration laws and to be open and honest with migration officials in relation to visa applications.
25.As Deputy President McMahon said in Re Lachmaiya v Department. of Immigration & Ethnic Affairs (1994) 19 AAR 148 at 155 to 156:
"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."
26.The Australian community would not expect that false claims made to migration officials to gain an advantage in entering the country would be rewarded with the grant of a visa after the immigration misconduct had been detected.
27.As to the "other considerations" there is no suggestion that the relationship between the applicant and the visa applicant is anything other than a genuine relationship, and there is no suggestion that the applicant was aware of any character concerns relating to the visa applicant's tourist visa application at the time the couple were married. Further, as the applicant apparently came to Australia as a refugee from Cambodia himself, he may not be able to return in order to live with the visa applicant. In the Tribunal's judgment however, these matters do not outweigh the primary considerations.
28.Finally, it is clear that the visa applicant's adult children all reside in Cambodia and no hardship to the visa applicant arises in that respect.
It follows that the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: KL Miller .....................................................................................
Personal AssistantDate of Hearing 22 March 2002
Date of Decision 12 April 2002
Counsel for the Applicant Applicant appeared on own behalf.
Solicitor for the Applicant
Counsel for the Respondent Mr Michael Brereton
Solicitor for the Respondent Australian Government Solicitor
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