Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 (28 April 2000)

Last Updated: 4 May 2000

CATCHWORDS - IMMIGRATION - applicant received visitor's visa on basis of false persona supported by bogus documentation - applicant maintained persona on subsequent visa applications and during interviews with officers of the respondent - applicant not of good character - applicant entered genuine relationship with Australian citizen - applicant carrying child due in September - applicant forming relationship with her husband's daughter - no threat to Australian community - discretion exercised in favour of applicant - decision set aside.

Australian Citizenship Act 1948, s 10B

Charter of the United Nations Act 1945 - s 3

Human Rights and Equal Opportunity Commission Act 1986 - Schedule 2

Migration Act 1958 - ss 20, 116, 499, 501, 501G

Attorney-General's Reference No. 3 [1997] UKHL 31, 24 July, 1997

Bradley v The Commonwealth (1973) 128 CLR 557; (1973) 1 ALR 241; (1973) 47 ALJR 504

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84; (1996) 68 FCR 422

Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353; (1995) 39 ALD 206; (1995) 69 ALJR 423; (1995) 183 CLR 278

Msumba and Department of Immigration and Multicultural Affairs (unreported, 8 February, 2000, Decision [2000] AATA 87)

R v Hutty [1953] VLR 338

Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (unreported, 7 November, 1994, Decision No. 9822)

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 27

September, 1994, Decision No. 9753)

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 2 May, 1996, Decision No. 10910)

Watt v Rama [1972] VR 353

Yunghanns v Candoora No. 19 Pty Ltd, (unreported, [1999] VSC 524, 15 December, 1999)

DECISION AND REASONS FOR DECISION [2000] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL )

) V2000/174

GENERAL ADMINISTRATIVE DIVISION )

Re IENG LY

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 28 April, 2000

Place Melbourne

Decision The Tribunal:

1. sets aside the decision of a delegate of the Minister dated 25 January, 2000; and

2. substitutes a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 16 February, 2000, the applicant, Chhun Fong, who has also used the name Ieng Ly, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") dated 25 January, 2000. Chhun Fong was notified of the decision on 10 February, 2000. The decision was that Chhun Fong did not pass the character test set out in s. 501 of the Migration Act 1958 ("the Act") and that she was refused the grant of a sub class 820 Spouse Extended Entry Visa ("the visa").

2. At the hearing, Chhun Fong was represented by Mr Niall of counsel and the Minister by Ms Taverner, an advocate in the Department of Immigration and Multicultural Affairs ("Department"). The documents lodged pursuant to s. 501G of the Act ("G documents") were admitted in evidence together with statements by the applicant and her husband, Ms Hong, Mr Tran Mrs Ngo, Mr Tee, Ms Can, Ms Dao, Mr Minh, Mr Lee and Mr Hor; a bundle of letters to Chhung Fong and their English translations; photographs of Chhung Fong and Mr Tau; a report of Mr Hess and his curriculum vitae; a copy of Mr Tau's health care card; the birth certificate of Carol Tau; records from the Housing Authority; a record of an interview with Chhung Fong and Mr Tau dated 10 February, 2000; and a video of the wedding of Chhung Fong and Mr Tau.

THE ISSUES

3. The first issue is whether Chhun Fong passes the character test set out in s. 501(6) of the Act. If she does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised to refuse to grant her the visa.

BACKGROUND

4. A number of issues were not in contention between the parties. With that in mind and on the basis of the evidence to which I will refer, I have made a number of findings of fact setting out some of the background to the matters I must consider. I will set them out in the following paragraphs.

5. On the basis of her statement and of her oral evidence, I find that Chhun Fong was born in Suay Rieng in Cambodia on 25 December, 1970. She has two older brothers and three older sisters as well as three younger sisters. All of her brothers and sisters reside in Cambodia. Prior to her marriage in Australia to Mr Tau, she had never been married and had never borne children.

6. In 1975, Chhun Fong escaped from Cambodia and travelled to Vietnam. They travelled by foot and by boat in areas that had been landmined. While in Vietnam, Chhun Fong's parents made cakes and cookies for a living. She helped them by grinding rice into powder by hand, helping to make the pastry and selling the products. She worked from 8am until 8 or 10pm. When the family returned to Phnom Penh in early 1980, it continued to run a cake business. Chhun Fong continued to work in the business but her duties were extended as she was now older. She stayed in the family business until she was at least 20 years of age. During that time, she was unable to attend school but did have a home tutor for approximately five years. Her education did not extend beyond her learning to read and write the Cambodian language.

7. The family cake business began to founder because people in Phnom Penh were too poor to buy them and because a lot of taxes had to be paid. As Chhun Fong had some free time from her cake making and as the family needed more money, she found work in a factory where she machine sewed garments. She spent eight hours a day in that employment and gave all of her earnings to her parents. One of her sisters joined her in the factory. Chhun Fong stayed in that employment until 1996 when she learned machine knitting. After six months of training, she worked from home. By that time, the family cake business had foundered. Her parents had bought a business selling plastic toys and games. Chhun Fong helped them in that business by selling toys and ordering from suppliers. In the meantime, she continued to earn income from her home knitting business. She gave all of the money she earned from her knitting to her parents. They used it to buy stock for the toy and games business. If Chhun Fong wanted money for her own purposes, she had to ask her father for it.

8. I accept Chhun Fong's evidence regarding her family and find that she came from a family where she was very sheltered. While all of the children in the family contributed to its finances, their father made all of the decisions in relation to those finances. Although she was permitted to go out of the house to work, her other outings were few. She went out with girlfriends in a group but did not socialise with boys or men. As a result, she had very little experience with men in Cambodia.

9. Chhun Fong admitted, and I find, that she had obtained a visa to visit Australia for a three month period by relying on a false identity and false documents to support that identity. She did so by paying an "agency" in Phnom Penh $US8,000.00 to prepare and lodge her application for a visa to visit Australia and to obtain other documents such as a Cambodian passport and certificates relating to her supposed employment and marriage. In that application, she presented herself as a self-employed seller of jewellery who wanted to travel to Australia to visit her sister and to look for new designs for her jewellery business. In a list of her relatives, she showed that she was 31 years of age and married to Hen Vibol, who was 32 years of age. They had two children, Sovida Hen aged 3 years and Visoth Hen aged 1 year. Attached to her application were false documents (in the Khmer language together with translations into the English language) relating to the lease of premises, licenses, authorisations and registrations of Mr Hen Vibol to carry on business as a jeweller and Chhun Fong as a person involved in the sale and exchange of gold.

10. Chhun Fong signed a declaration at the conclusion of her application on 12 October, 1998. I accept that she cannot speak, read or write the English language and also accept that nobody read the contents of either the application or the declaration to her or explained its effect. The declaration was to the effect that all of the information she had given was complete and correct, that her intention to visit Australia was genuine, that she would abide by the conditions of the visa and had adequate funds to meet all costs associated with her visit. I also accept her evidence that, apart from her signature, she neither completed nor lodged the application herself.

11. The Australian Embassy in Phnom Penh granted Chhun Fong a visa to visit Australia on the day following her signing her application i.e. 13 October, 1998. That visa ceased to have effect on 14 January, 1999. Chhun Fong arrived in Australia on 24 October, 1998 and was permitted to remain until 24 January, 1999. On 14 January, 1999, Chhun Fong was granted a 686 visa to remain in Australia until 13 October, 1999.

12. On 20 January, 1999, I find that Sarah Fuller, SMO at the Australian Embassy at Phnom Penh, reported on enquiries that had been made regarding Chhun Fong's claims that she and her husband ran a jewellery and gold exchange shop at particular addresses in Phnom Penh. She reported that Chhun Fong had not occupied either address or operated a business at the address she had given in her application. Ms Fuller advised that there were grounds for cancelling Chhun Fong's visa under ss. 116(1)(a) and 116(1)(d) of the Act.

13. Also on 20 January, 1999, I find that Ms Fuller sent an email to the Box Hill office of the Department to advise that Chhun Fong had come to her attention as not a bona fide person and as having presented a fraudulent persona. She advised the office that both her home and business addresses were false and that it was highly likely that her identity was doubtful. Documents submitted in support of her application for a 676 visa were bogus and there were grounds for the cancellation of her visa. Ms Fuller advised that it was highly likely that Chhun Fong would seek to change her status while she was onshore. She referred the matter to the Box Hill office for action and asked whether the original visa application was required. I find that an officer of the Box Hill office responded to her email by saying that he could not locate the record in the office and asked for the visa number. Ms Fuller responded with that number on 22 January, 1999. The Box Hill office of the Department referred the matter to the manager of the Compliance Section of the Department's Dandenong office on 25 January, 1999.

14. I find that, on 27 February, 1999, Chhun Fong married Mr On Tau, who is a garment cutter. Mr Tau, who was born on 1 January, 1964, came to Australia on 27 February, 1986. He became an Australian citizen on 23 January, 1992. Also in January, 1992, Mr Tau had sponsored his first wife for residence in Australia. She had previously lived in China and they had married in China on 19 January, 1991. They had one child, Carol who was born on 3 May, 1996, and were divorced on 2 January, 1998. I accept Mr Tau's evidence, which was uncontroverted, that his marriage disintegrated when his mother in law came to Australia from China and persuaded her daughter that a Cambodian Chinese husband was "not good enough" for a Chinese born woman. I accept that Mr Tau and his first wife remain friends and that Mr Tau speaks to his daughter on the telephone each evening. He also sees her every second or third weekend as well as on holidays and festive occasions.

15. On 31 March, 1999 Chhun Fong lodged an application to remain in Australia permanently. On the basis of her admissions during the course of the hearing, I find, that she again gave information, some of which was false. That information related to the identity and profile she had adopted in order to obtain her visa to visit Australia initially. Whereas she had stated in her initial application that she was married, she now claimed that she was divorced and had been since 3 February, 1998. She produced a copy of a document headed, in its English translation, "Civil Judgment". It purported to be a judgement that she and Mr Hen Vibol "separate [the] sexual relationship" between them. The property and children were awarded to Mr Hen Vibol.

16. In a letter dated 2 July, 1999, the Department wrote to Chhun Fong inviting her to attend an appointment with an assessing officer to discuss her case. The appointment was fixed at the Permanent Residence Section for 13 September, 1999 and she was advised that:

"You and your spouse should bring to the appointment any documentary evidence that demonstrates that you have been in a genuine and ongoing relationship for the period claimed in your application. It is up to you to demonstrate that your relationship is genuine and ongoing. You should also bring the current passports belonging to you and your spouse.

If you do not attend the interview, or contact this office about a further appointment, a decision regarding your application for permanent residence may be made based on the information available." (G documents, G10, page 42)

17. The interview was conducted by Ms Warzel of the Department's Residence Section on 13 September, 1999. She did so with the aid of an interpreter. During that interview, Chhun Fong maintained the profile of marriage and children that she had adopted for the purpose of obtaining her visa application. So too did Mr Tau.

18. Ms Warzel sent an email to the Senior Migration Officer at Phnom Penh on 17 September, 1999. She confirmed that Ms Fuller had correctly predicted Chhun Fong's application for a change of status. She also reported that she had interviewed Chhun Fong and Mr Tau and had found that the relationship was not genuine. The officer asked for the original visa application "should we decide to refuse on character grounds"(G documents, G14).

19. Ms Warzel conducted a further interview with Chhun Fong and Mr Tau on 18 November, 1999. Various allegations were put to Chhun Fong that she had misled the Department by providing false documents and false information in support of her visa applications, she had denied having $10,500.00 when she had shown that amount of money to a counter officer processing her visa application and that her relationship with Mr Tau was not genuine. (G documents, G22)

20. At some time in December, 1999, Chhun Fong conceived a child. Her child is due to be born on 2 September, 2000.

21. On 25 January, 2000, a delegate of the Minister decided that Chhun Fong did not pass the character test and was refused the grant of a visa (G documents, G24, page 91). A file note recorded that a video of the wedding of Chhun Fong and Mr Tau, together with a photograph album, would be returned when the notice of refusal on character grounds was served upon Chhun Fong.

22. On the basis of the record of interview, I find that Chhun Fong was interviewed by an officer of the Department on 10 February, 2000 (Exhibit S). At the outset of that interview, the interviewing officer told her that she was suspected of being an unlawful non-citizen. The purpose of the interview was to obtain information about her personal circumstances and to decide an application for a Bridging Visa E should she apply for it. If she were both an unlawful non-citizen and refused a bridging visa, she would be detained. During the interview, I find that Chhun Fong maintained the persona she had previously given to the Department. She was told of the decision to refuse her visa and taken into detention.

CONSIDERATION

The legislative provisions and the direction

23. Section 501(1) of the Act provides that:

"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."

24. The "character test" is set out in s. 501(6) which provides that:

"For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal history (as defined by subsection (7)); or

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c) 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; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test."

25. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act.

26. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble:

"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian people to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.

... When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

27. The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."

Good character

28. The direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). In introducing the directions regarding that paragraph, the Minister states:

"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 the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct."

29. Only s. 501(6)(c)(ii) is relevant in this case and, with regard to that, the Minister directed:

"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:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

. engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;

. continual evasion or non-payment of debt;

. continual disregard as to payments of family maintenance;

. involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or

. involvement in war crimes or crimes against humanity.

(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;

(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;

(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10 ...

1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)."

30. In this case, the focus is upon Chhun Fong's past and present general conduct as set out in s. 501(6)(c)(ii) rather than upon the other criteria in that provision. That requires a consideration of what is meant by the expression "good character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon said that :

"'Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)

31. After considering the structure and purpose of the Act and particularly that of section 20, Deputy President McMahon noted that emphasis is given in sub-section 20(1) to the giving of false information and concluded that:

"These are overall requirements important in the administration of immigration procedures. 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. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)

32. A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 27 September, 1994, Decision No. 9753) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (unreported, 7 November, 1994, Decision No. 9822) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 2 May, 1996, Decision No. 10910). In Naidu, Deputy President McDonald added:

"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." (paragraph 7)

33. What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which good character does refer in the following passage:

"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion ...

...

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)

34. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321. Speaking generally of s. 501, the Full Court said that it:

"... does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 501 is not concerned with whether an applicant 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

... Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal's decision on this ground, so (sic) it is unnecessary to pursue this question." (paragraphs 8 and 24, pages 324 and 327)

35. That brings me back to Chhun Fong's case. I find that she provided both false documents and false information to the Department. Those documents created a false persona for her initially when she lodged her first application and it was a persona upon which she later built. I accept that she could not read, write or speak English. Based on her own evidence and on her lack of skills in the English language, I am satisfied that it is more likely than not that she did not know of the details on her application form when she signed it. By the following day, however, I find that she did know that she was creating a false persona. That was the day she received the visa. In deciding to travel on that visa and with the knowledge that she had been portrayed as a jeweller with a husband and two children, she adopted as her own a series of false claims regarding her previous marital status, employment, place of residence and employment and children. All of those false claims were directed at creating and maintaining the larger false claim relating to her persona.

36. I am also satisfied that she maintained that false persona during her interviews with officers of the Department in September and November, 1999. Having said that, I also find on the basis of the records of those interviews, that Ms Warzel did not challenge Chhun Fong's persona during the interview in September, 1999. She did not put to her that her persona was false and did not put to her the information that Ms Fuller had gleaned and communicated to the Department in January, 1999. That did not occur until the interview in November, 1999 when I find that Chhun Fong maintained her persona by failing to tell Ms Warzel of her true identity.

37. During the hearing Chhun Fong explained how she came to seek the visa to visit Australia in the first place. In her statement and in giving her evidence, she said that she and her parents thought that she should visit Australia to visit her best friend and "adopted sister" Kinh Thai Ngo. She had known Ms Ngo since she was a little girl and the two had kept in contact by either writing or telephoning once or twice each month. In cross-examination, she said that her parents also wanted her to see the country and to see what it was like. She and her parents felt that Cambodia was very troubled and very unsafe. Later in her evidence, she spoke of people, including her sister and near neighbours, being robbed and of people, including people in her village since she left Cambodia, being killed. Her parents were upset and very scared and she was also worried. It was very difficult to run a business when the political situation was unsettled and there was robbery, violence and unrest on the streets. Chhun Fong said that her parents talked often about what they should do for their children. They told her that if it was possible for her to go overseas and to stay overseas, it would be a much better chance for her to have a good future. When asked whether that was why they gave her $US8,000.00 to pay for the visa and associated documents, she replied that they wanted her to have a good visit to Australia. At the same time, she agreed that they were very happy she married and had a good husband.

38. The evidence relating to her motives in obtaining the visa must be considered against a background of the evidence of her experiences in Cambodia and what she did when she came to Australia. Chhun Fong stayed with her adopted sister, Mrs Ngo. The evidence of Mrs Ngo in her statement (Exhibit I) supports the evidence of Chhun Fong and Mr Tau that they met at her house two or three weeks after Chhun Fong's arrival in Australia. It also supports their evidence that they only went out two or three times on their own and that they had only been out that number of times before Mr Tau asked Chhun Fong to marry him. I accept their evidence in that regard and also accept it in so far as they said that they had seen each other at Mrs Ngo's house on many occasions in between those visits.

39. In some instances, the paucity of their solitary outings and the relatively short time between November, 1999 when they met and January, 2000 when Mr Tau asked her to marry him would persuade me that their marriage was directed to supporting any quest Chhun Fong might have been on to remain in Australia. The written reports of the interviews with Chhun Fong and Mr Tau in September and November, 1999 contain some discrepancies in their knowledge of each other's affairs. In relation to the colour of the car, there is no discrepancy for Chhun Fong identified it as "café au lait" and "coffee with milk" at the hearing and as "milk colour" at the interview while Mr Tau said that it was a cream colour. The report recorded it as being green but, on the basis of Mr Tau's evidence and in the absence of any signed record of interview, I accept that it is a cream colour. I find that there was no discrepancy between them in that regard.

40. Both Chhun Fong and Mr Tau were cross-examined as to the time he proposed to her. Mr Tau said that it was either the second or third occasion on which they went out on their own he asked her to marry him. Chhun Fong said that it was the first time that they went out.

41. Chhun Fong and Mr Tau were also cross-examined as to whether they had spoken about having children before they were married. She said that it might have been that her husband had not talked about having children before they married but she knew that he wanted them. Chhun Fong denied having said at the interview on 13 September, 1999 that "... they discussed her wanting to have children before they decided to marry." (G documents, G 13, page 46) She said that she had told Ms Warzel that she had just said that her husband loved kids but just not yet, that they both liked children and that they did not plan to have children but "if it happened it happened".

42. Ms Warzel had stated in her report of the interview with Mr Tau on 13 September, 1999 that he and his wife had not discussed her wanting to have children before they decided to marry but that they might "... have children in the near future, may be in 1 year time." (G documents, G 13, page 46). Mr Tau said in cross-examination that he had thought about their having a family before they married but had not discussed it with Chhun Fong. Now that they are having a child, he is happy about it as he or she is to be born in the Year of the Dragon. That is a propitious time to be born for it means that the child will be powerful and highly educated.

43. On the face of it, there are some discrepancies in the manner in which Chhun Fong and Mr Tau have expressed their thoughts about children. There are discrepancies in their memories of the proposal. If an absence of discrepancies between the memories of husbands and wives were determinative of those who have entered genuine marriages in Australia and those who have not, there would be precious few judged to be genuine. Discrepancies are only one of the matters to be considered in assessing whether a marriage has been entered for valid reasons. Others include their household arrangements, how they hold themselves out to others, whether they spend time together, the nature of their commitment to each other, the comfort and support that they provide to each other, their financial arrangements, whether they have a sexual relationship, whether their relationship is likely to continue indefinitely and how others view their relationship.

44. After listening to her during lengthy evidence and cross-examination, I have concluded that Chhun Fong has, as she has said, been very limited in her exposure to boys or men. She had a small group of female friends in Cambodia but the group never included males and she had never been out with a boy or a man before she came to Australia. Mr Tau, I find, was the first man with whom she had been out alone and the first who had shown her attention for herself.

45. In light of what I find to be her parents' wishes as to her future and her inexperience with the opposite sex, I also find that Chhun Fong was "ripe for marriage" when she came. That is not to say that she would have married anyone in any circumstances. I accept her evidence that, while it was important in Cambodian culture for a woman to marry, it was also important that she loved the person she married. Although she would not have married anyone, I also find that she was very open to feeling that she had found love when she thought that it was offered. As she had no experience, she was open to that feeling at a time far earlier than might be expected in an Australian girl of her age and without the questions, either of herself or of Mr Tau, that it might be reasonable to expect an Australian girl to ask.

46. I also find that Mr Tau was "ripe for marriage" but for different reasons. In his case, I accept his uncontroverted evidence that his first marriage ended because of the interference of his mother in law and not because of his wishes. I also accept that he talked to his first wife at the insistence of his parents. His parents were concerned to ensure that, when they had a child, there was no chance of a reconciliation between him and his first wife. He did not talk to her because he preferred to have a reconciliation rather than to marry Chhun Fong but because he respected his parents' wishes that he do so. On the basis of his evidence, which is supported by the statement of Mrs Ngo, I find that Mr Tau was very lonely after his divorce and that he wanted to have a wife who would look after him. On his return to Cambodia in May, 1998, he had shown that he was looking to marry when he had sought his parents' opinion as to the suitability of a particular young girl as his wife. He had accepted their advice that she was too young and could not know anything about keeping a house. Chhun Fong had the qualities that he was looking for in a wife. The qualities which were of particular importance to him and some of which were apparent from her demeanour at the hearing, were respect for others and her willingness to maintain a house and care for him.

47. I find that Chhun Fong paid for the majority of the wedding costs of $3-4,000.00 and do so on the basis of both her evidence and that of Mr Tau. On the basis of Mr Tau's evidence, I find that it is traditional in Cambodia for the groom's family to pay such costs but that he did not do so as he could not afford those costs. I accept that Chhun Fong and Mr Tau went through a traditional Cambodian Chinese wedding. It was videotaped (Exhibit T).

48. A decision to marry may be based on many things and two people may come to that decision to do so in countless ways. There is no one basis and no one path to the decision. The fact that each was "ripe for marriage" does not lessen the validity of their decision to marry or make the basis of their decision anything other than their simply wanting to be with each other in a marriage. Each has declared his or her love for the other. That their relationship is one of love and care is supported by the evidence in the statements of Chhun Fong's father's cousins, Mr Can Tran (Exhibit G) and Mrs Nui Tran Hong (Exhibit H), Mr Tau's (and now also Chhun Fong's) flatmate, Mr Thiam Giok Tee (Exhibit J), Mr Tau's employers and owners of a clothing factory, Mr Luong Hau Can (Exhibit K) and Mr Stephen Lee (Exhibit N), Mr Tau's aunt, Mrs To Dao (Exhibit L), Mr Tau's friend, Mr Ma Hoang Minh (Exhibit M) and the daughter of one of Mr Tau's friends, Mr Kim Chiv Hor (Exhibit O). I accept the evidence of Chhun Fong and Mr Tau that, since their marriage, they have lived together. Chhun Fong has maintained the house and cooked their meals.

49. Having regard to all of the evidence, I am satisfied that Chhun Fong and Mr Tau entered their marriage based on their love for each other and intending it to be a lasting union. It was not entered for the purpose of enabling Chhun Fong to obtain permanent residence in this country. The fact that Chhun Fong paid for the majority of the costs does not alter my view as the decision as to who paid was based on the pragmatic basis that she had some money and Mr Tau did not have as much.

50. That brings me to the question of whether or not Chhun Fong is of good character. She is, as I have found, a person who respects others. Those for whom she has respect include her parents. Based on her evidence regarding her work for the family business and, later, her contributions to the family's finances by her work outside the family business, I find that she is very loyal to her family. Her interests reflect what the family considers should be her interests.

51. I am satisfied that she decided that the visit to Australia was a good idea but that she was influenced in reaching that decision by two things: the situation in Cambodia and by her family which, in turn, was influenced by the situation in Cambodia. I have set out the evidence of how she considered the situation in Cambodia at the time she left. I accept her evidence in that regard supported as it is by both the oral and written evidence of Mr Hess, who is a senior lecturer in the Department of Social Work at the Royal Melbourne Institute of Technology (Exhibit E). Having regard to these matters and to the fact that she had paid a considerable amount of money for the visa and associated documents (even if it was, on Mr Hess's evidence, the "going rate"), I have concluded that she bought an opportunity to visit Australia and an opportunity to see if an avenue, which was acceptable to her, presented itself to enable her to stay here. As it turned out, the avenue, which was acceptable to her because she loved Mr Tau and she entered a genuine marriage, did present itself.

52. Those opportunities were obtained initially through Chhun Fong's making false statements and were continued through her maintaining them first in relation to the extension of her visitor's visa and then in relation to her application to remain here permanently. I am satisfied that Chhun Fong knew that she was making the false statements. In doing so, she was in breach of Australia's laws and, in knowing her actions were wrong, she knew that she was in breach of those laws. She was prepared to be in breach of the law first to gain the opportunities and then to protect the avenue which had presented itself to enable her to remain in Australia.

53. Chhun Fong's conduct in relation to her entry and stay in Australia reveal a disposition to place her personal and now her husband's interests above her wider duty to the Australian community to abide by the law. That is a disposition which is not reflected in her day to day relationships but is clearly reflected when regard is had to the wider community.

54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows as a loyal and caring wife to her husband and as a respectful and gentle person to her friends. Consequently, I find that, for the purposes of the Act, she is not of good character. I repeat what I said earlier and that is that this finding does not mean that she is of bad character.

The discretion

55. Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:

"... note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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." (paragraph 2.2)

56. 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."

57. The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Chhun Fong's conduct; the likelihood that she will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

58. Of particular significance in relation to the seriousness and nature of Chhun Fong's conduct, I must have regard to:

"(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia." (paragraph 2.6)

58. In assessing such matters, regard must also be had to any relevant factors put forward by Chhun Fong as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that her conduct may be repeated and to the need to deter other people from repeating such conduct.

59. Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. ..." (paragraph 2.12)

60. In relation to the third primary consideration, the Minister stated that, in general terms, a child's best interests are served if he or she remains with its parents. Countervailing considerations to which he refers are not relevant in this case. The matters to which the Minister has directed a decision-maker's attention in considering the best interests of the child are:

"(a) the nature of the relationship between the child and the non-citizen;

(b) the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c) the age of the child;

(d) whether the child is an Australian citizen or permanent resident;

(e) the likely effect that any separation from the non-citizen would have on the child;

(f) the impact of the non-citizen's prior conduct on the child;

(g) the time (if any) that the child has spent in Australia;

(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances." (paragraph 2.16)

61. In looking at the best interests of the child, regard must also be had to the High Court's judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child ("the Convention") in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:

"Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. ...

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. ...

4. ...

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities ...

3. ..."

62. The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:

"No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason - legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as 'a primary consideration'. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it." (page 365)

63. It was not relevant for the High Court to consider whether there is a legitimate expectation that decision-makers will act in conformity with the Convention when a child has been conceived but has yet to be born. That is a question which I must consider for Chhun Fong's baby is not due until 2 September, 2000. Ms Taverner submitted that the Convention does not apply to an unborn child and so need not be taken into account. Mr Niall made the contrary submission and relied on particular articles in the Convention.

64. I agree with Mr Niall's submission that there are specific references in the Convention to unborn children or to their birth. They are:

"BEARING in mind that, as indicated in the Declaration of the Rights of the Child, 'the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth'" (part of Preamble);

"The child shall be registered immediately after birth and shall have a right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents." (Article 7, clause 1)

"States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. (Article 24, clause 1)

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) ...

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the basic knowledge of child health and nutrition, the advantages of breast-feeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventative health care, guidance for parents and family planning education and services. " (Article 24, clause 2)

65. These references must also be considered in light of Article 1 which provides that:

"For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."

66. Whether or not the Convention applies to an unborn child depends upon whether that unborn child is a "human being". The concept of "humanness" is found also in the light of other international instruments including the Universal Declaration of Human Rights 1948 ("UDHR"), the Declaration of the Rights of the Child 1959 ("DRC") and the International Covenant on Civil and Political Rights 1966 ("ICCPR"). Unlike the Convention, both the DCR and the ICCPR are set out in a schedule to legislation (Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986). It is questionable whether their being set out in this way gives them any status different from that accorded to the Convention. In relation to the Charter of the United Nations, which was set out in the Schedule to the Charter of the United Nations Act 1945 and approved by s. 3 of that Act, the High Court said that there was no intention to make the Charter binding upon persons within Australia as part of its municipal law. Since it had not been carried into effect by appropriate legislation, it could not be relied upon as justification for executive acts that would otherwise be unjustified (Bradley v The Commonwealth (1973) 128 CLR 557 per Barwick CJ, Gibbs and Stephen JJ). I will not dwell on that further for they must at least have the status accorded the Convention and their relevance in this case is not so much their status under Australia's municipal law as the context they provide in the interpretation of the Convention.

67. Each of the international instruments makes reference to humanness in some form or other. In the UDHR, for example, a declaration is made that "all human beings are born free and equal in dignity and rights" (Article 1) and it is recognised that "... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" (Preamble).

68. The concept of "humanness" is expressed in similar terms in the ICCPR (Preamble). Article 6 of the ICCPR states that:

"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. ...

3. ...

4. ...

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. ..."

69. The DRC notes that the "... peoples of the United Nations have reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person ..." and that "... the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth ..." (Preamble). Principle 4 states, in part, that the child:

"... shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care. The child shall have the right to adequate nutrition, housing, recreation and medical services."

70. The point at which a "human being" exists is a question that has engaged many religious, philosophical, scientific and indeed, legal debates. It is at the heart of any abortion debate. It has engaged the criminal courts from time to time for there can be no homicide unless both the defendant and the victim are human beings. In Attorney-General's Reference No. 3 [1997] UKHL 31, 24 July, 1997, Lord Goff of Chieveley said:

"Except under statute an embryo or foetus in utero cannot be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not murder.

The foundation authority is the definition by Sir Edward Coke of murder by reference to the killing of a 'reasonable creature, in rerum natura;" Co. Inst, Pt III, ch 7, p. 50. The proposition was developed by the same writer into examples of prenatal injuries as follows:

'If a woman be quick with child, and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child; this is a great misprision, and no murder ...'.

It is unnecessary to look behind this statement to the earlier authorities, for its correctness as a general principle, as distinct from its application to babies expiring in the course of delivery or very shortly thereafter, has never been controverted. It can, for example, be found in Blackstone's Commentaries on the Laws of England, 17^th ed. (1830), vol. 4, p. 198, Stephen; Digest of the Criminal Law (1877), p. 138, Smith & Hogan; Criminal Law, 8^th ed. (1996), p. 338 and in many other places over the years."

71. In Australia, the position at common law was summarised by Barry J in R v Hutty [1953] VLR 338:

"A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power and living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or of manslaughter or of infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother's body and is living by virtue of the functioning of its own organs." (page 339)

72. There have been a number of cases considering the position of unborn children and their rights under the civil law. Many were comprehensively canvassed by Gillard J in Yunghanns v Candoora No. 19 Pty Ltd, (unreported, [1999] VSC 524, 15 December, 1999). Those cases recognise that an unborn child may be protected by the municipal law and may possess rights but whether or not he or she does so depends upon one or other of two things. The first is the construction of the particular legislative provision or provision of the particular document, such as a trust deed, under consideration. The second depends upon the application of a legal fiction that he or she is deemed to be a person in certain circumstances. If so deemed and if born and attaining the requisite legal capacity to institute proceedings for an infringement of those rights, he or she may do so and obtain a remedy for their infringement even though that infringement occurred while he or she was yet to be born. The application of the legal fiction was explained in the judgement of Gillard J in Watt v Rama [1972] VR 353 (Winneke CJ, Pape and Gillard JJ):

"From those cases it must be accepted that there is a rule of law which recognises that an unborn child may possess rights. This implies there are correlative duties imposed on others in favour of the unborn child. It also implies that an unborn child is deemed to be a 'person' where the right is for his benefit, so that if he survives his birth and obtains the requisite capacity to institute proceedings for an infringement of his rights, he may do so and obtain a remedy for the infringement when he was en ventre sa mére." (page 376)

73. That brings me back to the Convention and to whether an unborn child can be a human being within its context. It seems to me that an unborn child cannot be regarded as a human being in that context. That is not to say that an unborn child does not receive acknowledgment in the Preamble to the Convention and specific recognition that it requires special safeguards and care, including appropriate legal protection, before as well as after birth. Equally, the unborn child receives specific recognition in the DRC and implied recognition in the ICCPR's prohibition of capital punishment upon pregnant women. But it is specifically because the international instruments need to give specific or implied recognition to unborn children in specific circumstances that adds weight to the conclusion that its general provisions relate to a child who is separate from its mother and so has become a human being as it has been understood at common law. Apart from the specific and implicit references to the unborn child in the Convention, the remainder are to the child who has been born and is leading an existence separated from his or her mother's body.

74. Paragraphs 2.13-2.16 of the Minister's direction refer to a "child [who] is or would be less than 18 years of age at the time when the decision is intended to come into effect" (paragraph 2.13). As the direction was drafted after the High Court's judgement in Teoh and in view of the reference to the age of a child, I have concluded that the Minister was referring to a "child" in the sense in which the word was used in the Convention. That means that, in Chhun Fong's case, the best interests of her unborn child are not a primary consideration in this matter under either the Convention or the Minister's directions. The fact that she is expecting a child to an Australian citizen is, however, one of the considerations which must be taken into account. The fact that Chhun Fong has become stepmother to Carol Tan, an Australian citizen, and so has a parental relationship with that child, is a primary consideration which must be taken into account.

75. The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. Each of those other considerations is given less weight than is given to the primary considerations. Examples of other considerations are set out by the Minister and I will return to them later.

76. Although Chhun Fong's actions in entering Australia were not consistent with the public good in so far as the administration of its migration laws are concerned, it does not follow that refusing her a visa is necessary for the protection of the Australian community. Chhun Fong's maintenance of the false persona has been a serious breach of Australia's migration laws but she is not likely to repeat that conduct. The false information she gave about her marital status in Cambodia was to continue the false persona she had created in Cambodia. Having created the false persona, I accept that, having created it, she felt that she had to maintain it. She did not adopt a further falsehood for any purpose other than to continue that persona. Unlike the applicant in Msumba and Department of Immigration and Multicultural Affairs (unreported, 8 February, 2000 [2000] AATA 87), Chhun Fong has not created an elaborate web of falsehoods about her actions once she arrived in Australia. Except in so far as it was necessary to maintain the initial false persona to escape from a situation in Cambodia in which she was fearful and to ensure that her false persona was free to marry Mr Tau by being a divorced woman, she has not been shown to have broken any Australian laws. She is not likely to break any other laws in Australia. Although she has married and sought to obtain permanent residence on the basis of it, her marriage is not a sham on which to base her application for permanent residence. As I have already found, she entered it as a genuine marriage.

77. Ms Taverner submitted that refusal of a visa to Chhun Fong will discourage similar conduct to that in which she has engaged to enter Australia. Certainly, at first glance the payment of $US8,000.00 for a visa and associated papers has all the appearances of a business transaction. It must, however, be viewed against the circumstances in which it was obtained and the circumstances which are likely to prevail if Chhun Fong is to return to Cambodia. An important part of the circumstances in which it was obtained is that it is "not uncommon" to pay a sum in that order for a three month visa. That was the evidence of Mr Hess and I accept it. Another important part is that Chhun Fong did not go to the Australian Embassy to lodge her application for visa. I accept her evidence that it was done for her by an agent. I accept the evidence of Mr Hess that there are many such agents located around the Australian Embassy at Phnom Penh. The third important part is that her application was dated 12 October, 1998 and the visa was granted on 13 October, 1998. That means that the Australian Embassy had no more than 24 hours in which to process the application. In the absence of any evidence to the contrary, it is difficult to see how the Australian authorities could have checked her application in anything more than a most cursory fashion.

78. That brings me to the circumstances that are likely to prevail if Chhun Fong returns to Cambodia. She would be an expectant mother who has no spouse. I accept the evidence of Mr Hess that most Cambodian women are raised to be good mothers and spouses. To return in that way would, on the balance of probabilities, be seen by the community in Cambodia as a result of her failing to be a good spouse. Shame would be visited upon Chhun Fong and the whole family. She would probably be faced with difficulty in reassimilating into the community even though she would be likely to be accepted back into her family.

79. Taking into account the seeming ease with which the agent was able to obtain the visa in the first place and the difficulties that Chhun Fong would face if she were to return, I am satisfied that any message of deterrence that Australia might hope to deliver by refusing her visa would be well and truly lost upon those who seek to obtain a visa as she did. The agent would be able to point to the successful visa he or she obtained and, given Chhun Fong's condition on her return and prevailing Cambodian attitudes, be able to rationalise her return on a basis that made no reference at all to any breach of Australia's migration laws.

80. I find that Chhun Fong is developing a relationship with Mr Tau's daughter, Carol. Carol is nearly four years of age. Chhun Fong has, I find on the basis of her evidence and that of Mr Tau, a growing relationship with her step daughter. They communicate on the telephone and see each other from time to time. The relationship is still in its early stages. Although it may grow, I am unable to say that it is a strong bond at this stage. Carol lives with her mother and sees her father regularly. The disadvantage that may affect Carol were Chhun Fong to leave Australia would be her father's inability to give her a place in a stable second family which he has formed since he and her mother separated.

81. Chhun Fong has formed a loving relationship with an Australian citizen, Mr Tau. While it is true that he became aware of the falsehoods she had told the Department, he did not do so until after he had formed a loving relationship with her and had married her. Mr Tau has worked in Australia and continues to work. He supports Chhun Fong.

82. I accept Mr Tau's evidence that he wanted to wait for a child until he could afford to have one and that he wanted to have a child born in the Year of the Dragon. I do not find that the conception of his child was contrived in order to facilitate his wife's remaining in Australia. To remove Chhun Fong from Australia would be to place Mr Tau in a position where he must choose between travelling to Cambodia to be with his wife and, in due course, their baby, and remaining in Australia with his daughter. As I have said, his daughter is an Australian citizen and his baby will, if born in Cambodia, be an Australian citizen if his or her birth is registered within 18 years of his or her birth (Australian Citizenship Act 1948, s. 10B).

83. Taking into account all of these circumstances, I am satisfied that Chhun Fong is not a person from whom the Australian community requires protection as she is not a person who is likely to re-offend against its laws. There is no likely deterrent effect if she were to be refused a visa. If she were to be refused a visa to remain in Australia, she would be able to return to her family but would face difficulties in finding acceptance in Cambodian society as an expectant mother unaccompanied by a husband. If she were refused a visa, an Australian citizen, her husband, would be deprived of the family life he has sought to re-establish for himself by marrying her. I do not accept that submission made on behalf of the Minister that Mr Tau would be able to cope with the loss of his marriage because he has previously suffered a breakdown of a marriage. The fact that his daughter and first wife, whom I accept he regards as a friend, would remain in Australia is an insufficient basis on which to make such a finding. Chhun Fong will be deprived of the opportunity to make her contribution to Australian society by, initially at least, maintaining a stable home for her husband and their child. If she were refused a visa, their child, who will have the right to become an Australian citizen, will be deprived of growing up with her father and of regular contact with his or her half sister. There was no suggestion in the evidence that Mr Tau would follow Chhun Fong to Cambodia other than for a short period. It is understandable that there was none for he would be faced with an impossible choice between remaining in Australia with his daughter and going to Cambodia with his wife and their child.

84. Taking into account all of the circumstances, I am also satisfied that the harm which would be done to Chhun Fong, her husband, his daughter and their unborn child outweighs any need to protect the Australian community from her or from her actions. It follows that the balance in exercising the discretion under s. 501 lies in favour of finding that Chhun Fong's visa should not be refused on the basis of her character.

85. For the reasons I have given, I:

1. set aside the decision of a delegate of the Minister dated 25 January, 2000; and

2. substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501.

I certify that the eighty five preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed: ..........................................

M Martinez Associate

Dates of Hearing 13, 14 April 2000

Date of Decision 28 April 2000

Counsel for the Applicant Mr R M Niall

Solicitor for the Applicant Erskine Rodan & Associates

Advocate for the Respondent Ms J Taverner