Sim and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 131 (1 March 2002)

Last Updated: 6 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 131

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1738

GENERAL ADMINISTRATIVE DIVISION )

Re Pengchhun Sim

Applicant

And Minister for Immigration, Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 1 March 2002

Place Sydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to refuse the grant of a visa under s 501(1) of the Migration Act 1958 should not be exercised in the case of Neary Im.

..............................................

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - Spouse visa - sponsor - character test - Visa Applicant born in Cambodia - where Visa Applicant provided false and misleading information in connection with application for tourist visa - falsely stated that she had two children and provided forged documentation to this effect - where Visa Applicant continued this falsehood in subsequent visa applications - character test not passed

Exercise of the discretion- Protection of the Australian Community - Expectations of the Australian Community - Best Interests of the Child - International obligations - Other Considerations

Migration Act 1958: ss 499(1), 499(2A), 501(1), 501(6)(c)(ii)

Migration Regulations: Schedule 2, Clause 309.225; Schedule 4, Clause 4001

Ministerial Direction No. 21, Visa Refusal and Cancellation under s 501

International Covenant on Civil and Political Rights: Article 23

International Convention on the Rights of the Child: Article 3 and 9

Fox and Minister for Immigration and Multicultural Affairs [2001] AATA 1040

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

Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74

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

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Vaitaiki v Minister for Immigration and Multicultural Affairs (1998) 150 ALR 608

Wang v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

1 March 2002 Mr R P Handley

1. This is an application by Pengchhun Sim ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 25 October 2001 to refuse the grant of a subclass 309 Spouse (Provisional) visa to the Applicant's spouse, Neary Im ("the Visa Applicant").

2. At the hearing, the Applicant was represented by Kerry Murphy, Solicitor, of Craddock Murray Neumann, Solicitors, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 ("the G Documents"), together with the documents tendered by the parties. Oral evidence was given by the Applicant and the Visa Applicant.

BACKGROUND

3. Mr Sim was born in Cambodia on 3 January 1977 and is aged 25. He arrived in Australia on 2 July 1994 with other members of his family on a "special visa". Mr Sim became an Australian citizen on 22 October 1996. Since 1997, he has worked as a machine operator at a bakery in Melbourne where he lives.

4. Mrs Im was born in Cambodia on 2 January 1971 and is aged 31. She first arrived in Australia on 7 August 1997 on a short stay tourist visa. On 19 December 1997, Mrs Im applied for and was granted a long stay tourist visa for a period of 12 months. On 8 October 1998, Mrs Im was granted a bridging visa to enable her application for a protection visa to be lodged that day. On 18 November 1998, her application for a protection visa was refused and, on 4 December 1998, she applied to the Refugee Review Tribunal ("RRT") for a review of that decision.

5. In August 1999, Mr Sim and Mrs Im met when Mr Sim was visiting a relative of his at a house in Sydney. They were subsequently married in Sydney on 27 November 1999. On 27 January 2000, Mrs Im applied for a bridging visa to enable her to travel to Malaysia for the stated reason that she wanted to meet her mother there. On 14 February 2000, Mrs Im was granted a bridging visa and, on 29 February 2000, she and Mr Sim departed Australia for Malaysia. On 3 March 2000, they lodged Mrs Im's application for a subclass 309 Spouse (Provisional) Visa at the Australian High Commission in Kuala Lumpur. The application was forwarded to the Australian Embassy in Phnom Penh where it was received on 22 March 2000. Mrs Im and Mr Sim returned to Australia on 10 March 2000. On 24 October 2000, Mrs Im gave birth to a daughter, Jessica Im.

6. On 8 January 2001, the RRT decided to affirm the decision not to grant Mrs Im a protection visa. The RRT had not been notified of her change of address from Cabramatta to Melbourne and, when she did not attend the hearing, made a decision on the papers. The RRT notified Mrs Im of the decision by letter dated 24 January 2001 sent to her former address in Cabramatta. Mrs Im's bridging visa expired 28 days from notification of this decision.

7. By letter dated 31 August 2001 from a case officer at the Australian Embassy in Phnom Penh, Mrs Im was notified of the Respondent's intention to refuse her application for a subclass 309 visa on the ground of her past and present general conduct, and invited her to comment on a number of factors that had been taken into consideration in forming this intention. Mr Murphy responded to this letter on Mrs Im's behalf by fax dated 19 October 2001. On 25 October 2001, a delegate of the Respondent at the Australian Embassy in Phnom Penh decided to refuse Mrs Im's application. Mrs Im was notified of this decision by letter dated 16 November 2001. Because this letter did not contain the required attachments, a further notification was sent to Mrs Im dated 10 December 2001. An application for a review of the delegate's decision was subsequently lodged with the Tribunal on 13 December 2001.

RELEVANT LAW AND POLICY

8. 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;...

9. 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.

10. 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".

11. 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 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.

12. The issue for the Tribunal to determine in this case is, therefore, whether Mrs Im 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 exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

EVIDENCE

Pengchhun Sim (the Applicant)

13. Mr Sim confirmed that he was born in Cambodia and arrived in Australia in 1994 on a "special visa" together with his parents, his brother and three sisters, all of whom now live in Melbourne and are permanent residents of Australia. Mr Sim said he had not been married before meeting Mrs Im in August 1999 when he was visiting a relative at her home in Sydney. Mr Sim was immediately attracted to Mrs Im, she gave him her telephone number and, thereafter, they spoke two or three times a week for 20 to 30 minutes discussing their backgrounds and what they were doing on a day to day basis. Mr Sim said they fell in love and Mrs Im later travelled to Melbourne to meet his family. They then arranged to get married in Sydney. After the wedding on 27 November 1999 in the Uniting Church in Cabramatta, Mrs Im moved to Melbourne to live with Mr Sim.

14. Mr Sim said that he did not ask his wife about her immigration status prior to their marriage. Nor did his parents ask her about this when she visited them in early November 1999. She had told him about her mother, two brothers and a sister in Cambodia, and that she used to have a boyfriend there. She did not tell him how the relationship with her boyfriend had ended. However, a few days before they were to marry, Mr Sim said they had to complete a form saying that they wanted to marry. Mrs Im explained to him, that, in her visa application papers, she had stated that she had two children in Cambodia. She told him that this was not true, but that it was necessary for her to continue to state this information in order to be consistent. Mr Sim acknowledged that he was, therefore, aware that his wife had provided false information. She told him that she did this because the migration agent in Cambodia told her to do so. Mr Sim said that he agreed to go along with her story because he loved her and did not want to be separated from her. He did not ask her about the visa applications she had made and he was not aware that his wife had made an application for a protection visa until about a week ago. However, his wife did tell him that she feared returning to Cambodia because life there is difficult and dangerous because of the risk of disease, the poor public health and the threat to women from men. He said there is a particular risk when you live overseas and visit Cambodia, that you may be tortured. This has happened to some of his friends.

15. Mr Sim said when he and his wife went to Malaysia in March 2000, they had intended to meet his wife's mother there. But she was unable to travel because she had fallen and was injured. They did, however, meet some friends there with whom they had been in communication through the Internet. Mr Sim said this was a honeymoon for him and his wife, but they also took his wife's spouse application to lodge at the Australian High Commission in Kuala Lumpur at the request of his solicitor, who had completed the form in Australia on their behalf. Mr Sim acknowledged that he was aware that a spouse application had to be lodged outside Australia.

16. Mr Sim confirmed that his daughter, Jessica, was born on 24 October 2000. While he is at work at his job as a machine operator at the Sunni Crust Bakery in Melbourne, recently renamed Quality Bread, his wife cares for their daughter. She also does most of the shopping, cooking and changing of nappies. If he is there, he helps his wife if she is busy. Mr Sim said his wife tends to get up to look after Jessica in the night because if he tends to her, she usually does not stop crying. He said his daughter has had a number of medical appointments in Melbourne for immunisations and for treatment when she has infections. She has had antibiotics for infections, a treatment which would not be available if they were living in Cambodia. He said he does not want his daughter to live in Cambodia because of the risk of disease, the poor public health system and because there is no future for education in Cambodia. If his daughter had to live in Cambodia, it would be punishing her as well as his wife for his wife's mistakes. It also means separating her from her father because he does not want to return to live in Cambodia. Mr Sim said he would have difficult finding work there because there are no bakeries in Cambodia: Cambodians eat rice and not bread.

17. Mr Sim said he is aware that the Respondent believed his wife to be of bad character because of the information provided by her in previous visa applications and, that if this review is unsuccessful, his wife will have to return to Cambodia. He said he is sorry about his wife's "stupid mistakes". He said this occurred because she could not understand English and just signed papers when asked to do so. He said he is very upset about this matter and has had to incur many expenses including for travelling, extra living expenses for being away from home, legal expenses, and expenses, as a result of lost days at work. Mr Sim said he wants to live with his wife and children in a peaceful and happy family life in Australia. They plan to have more children in the future. He wants to have good health and education for his children and for them to be able to get good jobs. He said he will serve his family and the Australian community.

18. Mr Sim said he would not return to Cambodia if his wife had to go there. He was not sure whether he would be able to send her money there, which would have to be in US dollars. He said he has no other trade than that of a machine operator and packer. While his wife's mother, brother and sisters still live in Phnom Penh,all Mr Sim's family are in Australia. His younger sister is married but his other two sisters and his brother are not married. Presently, Mr Sim lives with his wife in a rented house shared with a friend about one to two suburbs away from his family. He would be unable to move in with his parents because his married sister and husband also live with them.

Neary Im (the Visa Applicant)

19. Mrs Im confirmed that she has five brothers and sisters all living in Cambodia. Her father is dead but her mother is alive and living in Phnom Penh. She has a brother-in-law in Australia, Tyvorn Im, who is married to one of her sisters who is in Cambodia. Mrs Im said she does not have any children in Cambodia and has one child by her husband, Jessica, who was born on 24 October 2000.

20. In Cambodia, Mrs Im had lived in a de facto relationship with Keo Phearom. She said she had told Mr Sim that she had a boyfriend in Cambodia, but she did not tell him that she had lived with this boyfriend as husband and wife until after she and Mr Sim were married. She did not tell Mr Sim about this before they were married because he did not ask her.

21. Mrs Im said her reason for wanting to visit Australia was to see the country and visit her grandparents who had been in Australia for about 20 years. She explained that the person in Australia she calls her grandmother is in fact the cousin of her grandmother on her mother's side in Cambodia, whom she calls grandmother. Her name is Say Soeu Chan. Her grandfather was Ry Chan, who is now deceased. Mrs Im said that her grandparents had 4 children: Ta Chan, Dy Chan, Srey To (a nick name), and Vi Boul Chan. Mrs Im said it is the custom in Cambodia to use the name grandmother or grandfather for those in the position of cousins of one's grandparents.

22. Mrs Im said she was introduced to a Mr Phally, a migration agent in Phnom Penh, who was a friend of her aunt's. She paid the agent, US$4,200 to obtain a tourist visa for her. Of the sum, her friends and relatives contributed about US$2000. Mrs Im said she now realises that she was cheated. The agent said the fee was for his paperwork, for running around, for his fee and for a fee for the Embassy. Mrs Im acknowledged that she was suspicious that the application was not legitimate. She denied that it was her intention to try and remain in Australia. She told the agent why she wanted to visit Australia and gave the agent the other information asked for. The agent said it was up to him to complete the form. This was why the agent probably described Tyvorn Im as her brother, rather than as her brother-in-law. The agent said the application should include the names of the two children to enable her application to be processed more quickly. Mrs Im agreed that the reason behind this was that the Australian authorities would think there was more chance of her returning to Cambodia on the expiry of her visa.

23. Mrs Im agreed that the information about her mother looking after the two children while she was in Australia was also false and that she provided false family books with the visa application. However, she maintained that, as stated in the application, she was living in a de facto relationship with Phearom Keo. Mrs Im said the names of the children included in the tourist visa application were invented by the agent, but the photographs are those of the children of her sister and brother-in-law, Tyvorn Im. Mrs Im said the reference in the family book to her having a sister in France was also false. She did not know why the agent included this false information. Mrs Im said the agent completed the form and told her to sign and lodge the form at the Australian Embassy. Mrs Im went with the agent to the Embassy in order to do this.

24. With regard to the long stay tourist visa which Mrs Im obtained in December 1997, she said she was happy to remain in Australia as long as tourist visas were available. Towards the end of the 12 months allowed by that visa, she decided that she would try and stay longer because the situation in Cambodia was "not very peaceful". Her mother had told her on the phone that the situation in Cambodia was bad and Mrs Im was scared that the people whom she thought might have assassinated her de facto husband, Phearom Keo, might also kill her. She said her husband was a member of the Funcinpec Party. She was not a member, but she used to accompany her husband to party functions. She told the migration agent about her fears and he filled out the application for a protection visa for her. She agreed that she had not mentioned that she was fearful when she applied for a visitor visa in 1997. However, she said she was worried about her safety when leaving for the airport.

25. Mrs Im said her husband had been killed in a traffic accident on 18 September 1997, less than 4 weeks before she flew to Australia. The Cambodian police have not been able to ascertain whether her husband's being run over and killed by a motorcycle was by accident, or whether there was a political motivation. However, she believes that this may have been politically motivated. She said she was scared everyday in Cambodia because people got tortured and robbed. Mrs Im was asked why her application for a protection visa was not lodged until over a year after her arrival in Australia. She said she did not know the law in Australia and, at the time that her first tourist visa was about to expire, she was advised by a friend to apply for an extension and she followed this advice.

26. Mrs Im said she first met her husband in Sydney in August 1999 when Mr Sim was visiting his grandmother in Sydney. After meeting, they kept in touch by phone two or three times a week, talking for 20 to 30 minutes on each occasion. They talked about day to day things. Mrs Im went to Melbourne in early November to see Mr Sim and meet his family. She and Mr Sim wanted to get married quickly because they loved each other and he had proposed to her over the phone beforehand. She said that prior to the marriage, she had told him about her family in Cambodia and about her work. While she mentioned having previously had a boyfriend, she did not tell him that they had lived together in a de facto relationship until just before or just after their wedding. She also did not tell Mr Sim about her application for a protection visa until after they were married, nor about her fear of persecution. He had not asked her about those things. They were in love and only interested in the future.

27. At the time Mrs Im met her husband, she was living with her grandmother in Cabramatta in Sydney. After they were married, which took place in a church in Cabramatta, she moved to Melbourne to live with her husband. She asked her husband to fill in a spouse application form for her, so that she could continue to live in Australia. She told her husband that the agent in Cambodia, Mr Phally, had instructed her that she must continue to claim that she had two children when completing other visa application forms. This is why she continued to claim having two children in the protection visa application and the spouse visa application. Mrs Im said she was sorry she had done this, but at the time, she felt that she had to follow the agent's instructions and be consistent. For the spouse visa application, Mrs Im arranged for false birth certificates to be obtained by her mother for the two children. She said her mother obtained these certificates from a government official in Cambodia. Her mother was also able to provide school certificates for the two children, because she is a schoolteacher and was able to arrange this with her colleagues.

28. Mrs Im said she and her husband went to Malaysia in order to meet her mother. However, her mother had an accident and was not able to come. Mrs Im and her husband also had a honeymoon in Malaysia and lodged the spouse visa application there. She acknowledged that she had not told the Department of their honeymoon or intention to lodge the spouse visa application in Malaysia. She did not receive notification of the RRT decision because the RRT was not aware of her change of address. As a result, she was not aware that her migration status became unlawful 28 days after the RRT decision being handed down.

29. Mrs Im said she looks after her daughter, Jessica, on a day-to-day basis, bathing her, changing her, feeding her etc. At night, if Jessica cries, Mrs Im will get up to put her to bed again. Sometimes her husband does this with her. Her daughter is more attached to Mrs Im because she is with her during the day and undertakes Jessica's day-to-day care.

30. If Mrs Im goes to the doctor, she has to go with her husband because she does not speak English. Her daughter has caught infections from time to time and needed medication. She is not sure whether such services are available in Cambodia. Australia has a much better public health service. Moreover, public education in Cambodia is also not very good. Mrs Im said it would be difficult to return to live in Cambodia because there is a lot of disease there. She has not thought about how she would live if she were required to return there. While she is not scared for her own safety, she would be scared for the safety of her child if she had to return to Cambodia. She does not want to leave her husband and daughter in Australia.

31. Mrs Im said she is aware that the immigration officer found her to be of "bad character" because of false information provided in her visa application forms. While she acknowledged the false statements and was sorry that she had made such statements, she said she could not speak English and had relied on others. She contended she is of good character. With regard to the letter from Mr Murphy responding to the Respondent's concerns, Mrs Im said she had relied on her husband's dealings with Mr Murphy and could not remember the letter of 19 October 2001 (G215). Mrs Im maintains that her relationlship with Keo Phearom was not approved of by her family and that this was the reason for his not being included as her spouse in her family book. She confirmed that the information provided in Mr Murphy's letter concerning her two sisters and two brothers in Cambodia is correct and that she was not aware that her visa status in Australia was unlawful from 28 days after the handing down of the RRT decision.

SUBMISSIONS

The Applicant

32. Mr Murphy, for the Applicant, noted how difficult it had been to obtain clear answers to questions asked of the Applicant and Visa Applicant in oral evidence. This is a characteristic of people from Cambodia who are without a high level of education. Nevertheless, Mr Murphy said the Applicant concedes that the Visa Applicant does not pass the character test because of the false information provided by her in various visa applications. In particular, he noted Mrs Im's false statement with regard to the two children, that in her tourist visa application Tyvorn Im was stated to be her brother, when he is in fact her brother-in-law, and other incorrect family details.

33. With regard to the Bridging Visa B, for which Mrs Im applied in order to travel to Malaysia, Mr Murphy noted that the Migration Regulations require that a person's reason for travel outside Australia must be substantial. However, he submitted that a person is not required to state every reason for leaving Australia. He said that Mrs Im had intended to meet her mother in Malaysia and this was a substantial reason, which apparently was recognised by the departmental delegate who granted the visa. Mr Murphy submitted that the Tribunal should not draw any adverse inferences from the fact that Mrs Im had more than one reason for travelling to Malaysia.

34. Mr Murphy said Mrs Im did notify the Department of a change of address in January 2000 (G9), but did not apparently notify the RRT of such a change. Mr Murphy said he had not been not instructed with respect to Mrs Im's protection visa application.

35. Mr Murphy said although the Applicant concedes Mrs Im does not pass the character test, he submits that the Minister's discretion under s 501(1) should be exercised in her favour. With respect to the first of the primary considerations to which decision-makers are referred by Direction No. 21, the Protection of the Australian Community, Mr Murphy conceded that the nature of Mrs Im's conduct is serious but said both Mr Sim and Mrs Im had expressed their regret and apologised for that misconduct. Mrs Im explained that she had to continue with the false story about her family in Cambodia because she had been instructed to do this by the agent in order to be consistent. She now realises this was wrong and regrets doing so. Mr Murphy submitted the risk of recidivism is small since Mr Sim and Mrs Im now understand the significance of giving false information. There is no evidence of any other criminal activity and no evidence of any welfare fraud as suggested by the delegate. There is also no evidence that the refusal of a visa to Mrs Im will have any deterrent effect. While the Applicant acknowledges that Mrs Im's conduct is not acceptable, the Applicant argues that the deterrent value of refusing a visa is small.

36. With regard to the Expectations of the Australian Community, Mr Murphy referred to the Tribunal decision in Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054, where Deputy President McMahon said of the relevant paragraph of Direction No. 17 which is expressed in identical terms in 2.12 of Direction No. 21:

Paragraph 2.12 (of Direction No. 17) gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely.

Mr Murphy emphasised the requirement that the Act be administered "fairly and humanely", a view which was cited with approval by the Tribunal in Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74.

37. Mr Murphy submitted that the primary consideration of pre-eminent importance in this case is the Best Interests of the Child. Both Mr Sim and Mrs Im are very concerned about the future health, education and prospects for their child. They are concerned about the risk of disease and the poor health system in Cambodia, about the poor education system there and the general instability of the country. Mr Murphy referred the Tribunal to the report by Caritas Australia (A5) and the country information from AusAid (A6) which he said indicate that Cambodia is one of the poorest countries in South East Asia with significant problems in relation to health and education. Mr Murphy said the best interests of an Australian citizen child would clearly be for the child to be brought up in the best situation available and that must be Australia when compared to Cambodia. Neither, Mr Sim nor Mrs Im want Jessica to go to Cambodia.

38. Mr Murphy referred to the Tribunal decision in Fox and Minister for Immigration and Multicultural Affairs [2001] AATA 1040. In that case, while the Tribunal accepted that the educational and health support systems available in Indonesia were generally acknowledged as being inferior to those in Australia, the Tribunal was not satisfied that there was sufficient material before it which would, by itself, be determinative in terms of the child's best interests. Mr Murphy said, in the present case, there is sufficient material to enable the Tribunal to make such a determination. He referred to Moengangongo (supra) where the Tribunal found that the Applicant's future health needs were an important consideration. Mr Murphy said that the evidence supports a contention that the situation in Cambodia is very poor and that Jessica's best interests are that she should not just be with her parents, but in a situation where the system of public health and education will be supportive.

39. With regard to Other Considerations, Mr Murphy referred the Tribunal to Australia's international obligations with respect to the child. He referred to Article 23 of the International Covenant on Civil and Political Rights and to Articles 3 and 9 of the Convention on the Rights of the Child. He also said that the evidence supports the Applicant's claim that the relationship between Mr Sim and Mrs Im is a genuine one. Moreover, Mrs Im's application is for a subclass 309 visa which is a 2 year temporary visa. At the end of 2 years, Mrs Im will again be required to establish the bona fides of her relationship with Mr Sim and pass the character test. Mr Murphy concluded by submitting that the paramount consideration in this matter is the best interests of the child, Jessica, and the Minister's discretion under s 501(1) should be exercised in Mrs Im's favour.

The Respondent

40. Mr Allatt, for the Respondent, said that when Mrs Im first sought a tourist visa, she engaged an agent in Phnom Penh for an extraordinarily large sum of money - US$4,200 - of which she contributed about half with the other half, being contributed by friends and relatives. Mr Allatt noted, by contrast that the Caritas and AusAid reports on Cambodia indicate a GDP per capita of approximately US$300 per annum. Mr Allatt said the inclusion of 2 children in Mrs Im's application was to "trick" the Australian immigration authorities into thinking that Mrs Im would be likely to return to Cambodia, something of which she was aware. The repetition of much of this false information was continued almost up until the time of the hearing and Mrs Im did not even tell her solicitor of the falsity of this information until recently. Mr Allatt noted that Mrs Im's application for a long stay tourist visa was obtained on the basis of the same false information and her application for a protection visa also contained false information with respect to her alleged children. With regard to Mrs Im's stated belief that her husband was killed for political reasons, Mr Allatt said there was no real evidence to support this contention. He submitted that it was Mrs Im's intention to come to Australia and stay as long as she could.

41. Mr Allatt noted Mrs Im and Mr Sim gave conflicting evidence about what Mrs Im told Mr Sim about her visa status prior to their marriage. Mr Allatt said the Respondent contends that Mr Sim's evidence that he did not ask her about her visa status is "incredible" given that Mr Sim and his family travelled to Australia on a "special visa". Mr Sim's evidence was that he learned about Mrs Im's former boyfriend and that her applications included a false claim that she had two children, only a few days before their wedding. On the other hand, Mrs Im's evidence was that she had not told Mr Sim anything about having claimed two children in her visa applications or about long term relationship with her boyfriend, before their marriage. Mr Allatt noted that Mrs Im's application for a spouse visa also included false material about her alleged children and that the information provided to her solicitor continued to present the same false story.

42. With regard to Mrs Im's application for a Bridging Visa B to travel to Malaysia in 1990, Mr Allatt said the Respondent accepts the Applicant's submission that the Migration Regulations require a substantial reason for such a visa to be issued. Even if Mrs Im's meeting with her mother was a substantial reason, he contended that Mrs Im should also have declared the other significant reasons for her going to Malaysia, in particular, the lodging of her spouse visa application at the Australian High Commission in Kuala Lumpur. Mr Allatt submitted that in making the application for the bridging visa, Mrs Im withheld the fact of her marriage from the Department.

43. Mr Allatt said that Mrs Im's solicitor, when first instructed, was apparently not aware of Mrs Im having made an application for a protection visa and having applied to the RRT for a review of the decision to refuse this application. Mr Allatt submitted that the protection visa application was purely a device to enable Mrs Im to remain in Australia. Once another avenue enabling her to remain in Australia had opened - through applying for a spouse visa - Mrs Im appeared to no longer have been interested in her application for a protection visa.

44. Mr Allatt noted that the Applicant concedes that Mrs Im is not of good character. The Tribunal must therefore consider the exercise of the Minister's discretion pursuant to s 501(1) and the matters to which decision-makers are referred by Direction No. 21. With regard to the first of the primary considerations, the Protection of the Australian Community, Mr Allatt submitted that Mrs Im's misconduct is most serious and involves gross breaches of immigration law. He said there is evidence of serial lying and of her maintaining falsehoods. It was not until very recently that she told the truth. Her actions comprise fraudulent and deceptive conduct and she has also submitted fraudulent documents - the false birth certificates for the two children and the false education documents - in support of her visa applications. Mr Allatt said that deterrence is an important factor, so that others who are considering abusing the system understand the consequences. He noted that the decision-maker in Phnom Penh, Michael Clisby, said in his written statement dated 11 February 2002 (R1) that "corruption in Cambodia is endemic" and that "fraudulent documentation is a major problem in Cambodia". Thus, deterrence is of particular significance in this context. Mr Allatt also noted that Mrs Im's "litany of falsehoods" suggests that recidivism is a real risk.

45. With regard to the second primary consideration, the Expectations of the Australian Community, Mr Allatt submitted that the Australian Community would not expect Mrs Im to be permitted to remain in Australia given the history of falsehoods. With respect to the third primary consideration, the Best Interests of the Child, Mr Allatt said the Respondent accepts that the reports by Caritas (A5) and AusAid (A6) present an accurate picture of the situation in Cambodia. The Respondent concedes that Australia provides a better health and education environment for bringing up a child. However, Mr Allatt said Mr Sim's evidence was equivocal on arrangements for the care of Jessica if Mrs Im has to return to Cambodia. Mr Sim was adamant that he would not go back to Cambodia, but suggested that Jessica would have to return with her mother. On the other hand, Mrs Im's evidence did not give this impression. If Jessica is unlikely to return to Cambodia with Mrs Im, then in this case, the Best Interests of the Child are of lesser weight. In any event, the Best Interests of the Child must be weighed against the Protection of the Australian Community and, in particular, the integrity of Australia's migration system. The Respondent submits that this latter consideration should be given greater weight.

46. With regard to Other Considerations, Mr Allatt noted that Mrs Im has no real family ties in Australia, except those with her husband and daughter. With regard to hardship, Mr Allatt said that Mr Sim was aware at the time of his marriage of Mrs Im's visa status and that she had made false claims concerning the two children. Mr Sim also mislead the Tribunal on this issue. Mr Allatt acknowledged Australia's international obligations with respect to the rights of the child, but pointed to paragraph 2.24 of Direction No. 21 which states that the power to refuse a visa remains a fundamental exercise of Australian sovereignty and lies within the discretion of the responsible Minister in the interests of the Australian community. Mr Allatt submitted that it is a matter of weighing the competing considerations, and that the Protection of the Australian Community should prevail.

CONSIDERATION OF THE LAW AND FINDINGS

47. The Applicant concedes that Mrs Im does not pass the character test by virtue of s 501(6)(c) of the Act having regard to her "past and present general conduct". The application of the character test in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character.

48. 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...

49. The Tribunal is also of the view that Mrs Im's conduct in submitting visa applications containing false information with regard to her family background, more particularly set out below, lead to the conclusion that she is not of good character and does not, therefore, pass the "character test" because of her past and present general conduct. Having so decided, the Tribunal must proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that Mrs Im 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.

50. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

51. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes under the Migration Act which, in turn, include providing false or misleading statements or presenting false or forged documents. The Tribunal recognises the importance of observing the truth when dealing with officials in migration matters. For example, in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:

The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.

52. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

53. The Tribunal's general impression of Mr Sim and Mrs Im was that they had difficulty comprehending Australia's migration system and have only recently appreciated the need to provide the immigration authorities with a complete and truthful account of all the relevant facts. The Tribunal is aware of the relatively low level of education in Cambodia and that the process of government in Australia is significantly different. The Tribunal noted the difficulties for both Mr Sim and Mrs Im in understanding the nature of the questions asked of them at the hearing in giving evidence, which meant that a particular topic had to be approached using a variety of different questions before the information being sought was forthcoming. The Tribunal's impression was that Mr Sim and Mrs Im were truthful in giving evidence and that the false information which they have given in the past has been largely as a result of the instructions given to Mrs Im by the agent, Mr Phally, in Phnom Penh, to be consistent by continuing to provide the false information first provided in Mrs Im's tourist visa application. Mrs Im has acknowledged that the information contained in this application stating that she had two children in Cambodia was false and that some details concerning her family background, in particular, her having a sister in France and that she had a brother in Australia were incorrect. She does, however, have a brother-in-law in Australia, Tyvorn Im, who is married to her sister, Soth Vy Im, who still lives in Cambodia. Mrs Im's evidence is that the false information concerning the two children was included in the tourist visa application by the agent in order to persuade the Australian immigration authorities of the likelihood of Mrs Im returning to Cambodia, thereby speeding up the processing of her application. The Tribunal accepts Mrs Im's evidence that her reason for wishing to visit Australia was only "sightseeing" (G4) and to see relatives, whom she referred to as her grandparents. These were in fact her grandmother's cousin, Say Soeu Chan, and her husband, Ry Chan. The Respondent was able to confirm that Ry Chan had migrated to Australia, probably in the early 1980s.

54. Mrs Im's evidence was that she paid US$4,200 to the agent to obtain her tourist visa. As Mr Allatt pointed out, this is a very significant sum in Cambodia, and Mrs Im acknowledged in giving evidence that she was aware that her application was not a legitimate one. Nevertheless, she said it was not her intention at that time to try to remain in Australia permanently. The Tribunal accepts Mrs Im's evidence with regard to Phearom Keo, with whom she was in a de facto relationship from about 1990 to the time he was killed in a traffic accident on 18 September 1997. Mrs Im's evidence about her family not approving of this relationship, of them not being formerly married, and of him not being included as her spouse in her family book is credible, as is her account of Mr Keo being killed when he was hit by a motorcycle. The Tribunal accepts Mrs Im's evidence that Mr Keo was a member of the Funcinpec Party and involved in its political activities. It is feasible that even though Mrs Im was not a member of the party, she may have been associated with it as a result of her husband's membership and activities.

55. On 19 December 1997, Mrs Im applied for a long stay tourist visa which was granted that day. Although there is no documentation relating to this visa in the G Documents, the Tribunal assumes from the evidence of the parties that Mrs Im relied on the information provided in her first tourist visa application when seeking this extension. Thus, she relied on the earlier falsehoods. On 8 October 1998, Mrs Im lodged an application for a protection visa. While the visa application (G5) repeats the false information in relation to Mrs Im having two children, the Tribunal accepts Mrs Im's evidence that she did fear persecution as a result of her association with Mr Keo and his membership and activities in the Funcinpec Party. She was not, however, herself a member of the party, as stated in the protection visa application, and Mrs Im gave no evidence to support some of the other claims made there as to the risk to her safety in 1997. In giving evidence, Mrs Im acknowledged that it was a false application, although there was some substance to her fears arising from her husband's political activities and her worry that his death was politically motivated.

56. The Tribunal accepts Mr Sim's and Mrs Im's evidence that one of the reasons for their wishing to travel to Malaysia was to meet Mrs Im's mother. Mrs Im's application for a Bridging Visa B, which was made on her behalf by her solicitor (G8, p98), did not mention that she and her husband were also intending to treat their time in Malaysia as a honeymoon and, while there, lodge Mrs Im's application for a spouse visa. However, in the Tribunal's view the application for a Bridging Visa contained no false statements.

57. Mrs Im's application for a spouse visa was lodged with the Australian High Commission in Kuala Lumpur on 3 March 2000 and forwarded to the Australian Embassy in Phnom Penh, where it was received on 22 March 2000. The application repeats the false statements with regard to Mrs Im having two children in Cambodia and that they were in the care of her mother there. There is also a further false statement that Mrs Im's sister was in France, and Mrs Im later submitted false birth certificates and education certificates for the two children obtained by her mother in Phnom Penh. It is apparent that Mrs Im's solicitor did not become aware of these false statements and documents until relatively recently.

58. Thus, the Tribunal finds that Mrs Im did make false and misleading statements and supply false or forged documents in connection with her visa applications for Australia, as she now acknowledges. She and her husband have expressed their regret for their past conduct and have explained that they perpetuated the falsehoods concerning Mrs Im's family because of the instructions given to Mrs Im by the agent in Phnom Penh, Mr Phally, who initially advised Mrs Im. As required by paragraph 2.8 of Direction No. 21, the Tribunal takes account of this as a mitigating factor. In the Tribunal's view, it is unlikely that Mrs Im's previous conduct will be repeated, given her recent experience and better understanding of Australia's immigration system. The Tribunal accepts that deterrence is an important issue, especially where, as in Cambodia, there is a climate of corruption and the provision of fraudulent documentation is a major problem, as stated by the delegate of the Respondent in his statement dated, 11 February 2002 (R1).

59. With regard to the second primary consideration the Expectations of the Australian Community, the Tribunal notes the discussion of the equivalent paragraph in Direction No. 17 by Deputy President McMahon in Leha (supra), at paragraph 34, that in addition to the statement in paragraph 2.12, "there would be a general expectation in the community that the Act would be administered fairly and humanely". In Mrs Im's case, the Tribunal is of the view that regard should had to the circumstances, as outlined by Mrs Im, in considering whether her misconduct is such that she should not be granted a visa. In the Tribunal's opinion, the Australian Community would take a humane view of her situation.

60. The third primary consideration is the Best Interests of the Child. The Tribunal notes the decision of the Full Federal Court in Wang v Minister for Immigration and Multicultural Affairs (2001) FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998)150 ALR 608, where the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, "to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration".

61. Mr Sim's and Mrs Im's daughter Jessica was born in Australia on 24 October 2000 and is an Australian citizen. The Tribunal must have regard to the effect on Jessica of having to return to Cambodia and being deprived of the country of her and her father's citizenship and, following Vaitaiki (supra) per Burchett J at 614, depriving her of her country's "protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to the broad concept of lifestyle". This includes the loss of educational opportunities available to a child in Australia. Mr Murphy presented the Tribunal with reports from Caritas Australia (A5) and AusAid (A6) which outline the situation in Cambodia. The Respondent accepted that these reports present an accurate picture of the situation there, and concedes that Australia provides a better health and education environment for bringing up a child. The Tribunal noted the decision in Fox (supra) and, unlike in that case, was satisfied there was sufficient material before it - the Caritas and AusAid reports - to find that Jessica's interests would be better served by the health and educational systems in Australia.

62. The Tribunal notes Mr Sim's evidence that he will not return to Cambodia if his wife is deported. All the remainder of his family are in Australia, he has established himself here, and has a job, whereas he has no future in Cambodia. The evidence of Mr Sim and Mrs Im was unclear about what arrangements they would make for Jessica if Mrs Im had to return to Cambodia. The impression gained by the Tribunal was that they had not been prepared to confront this possibility, both being adamantly opposed to it. On this basis, either Jessica would remain in Australia and be separated from her mother which, given the evidence of the close relationship between mother and daughter, would be likely to have significant adverse effects on Jessica, or, alternatively, Jessica would return to Cambodia with her mother in which case she would be separated from her father and her father's family and she would be deprived of her country of citizenship and, in particular, the support and benefits of her country's health and education systems. The Tribunal concluded that there was no doubt that the best interests of Jessica are that her mother should be granted a visa to enable her to stay in Australia.

63. Having so concluded, the Tribunal must then assess the strength of other considerations and determine whether they outweigh the primary consideration of the Best Interests of the Child. Before doing so, the Tribunal also had regard to the Other Considerations to which decision-makers are directed by paragraph 2.17 of Direction No. 21. These Other Considerations may include: the extent of disruption to the non-citizen's family, business and other ties to the Australian community, genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship, the degree of hardship which would be caused to immediate family members lawfully resident in Australia, and the family composition of the non-citizen's family both in Australia and overseas.

64. There is no dispute that the relationship between Mr Sim and Mrs Im is a genuine marital relationship. It appears that Mr Sim was probably aware that there could be difficulties concerning Mrs Im's immigration status, at least a few days before their marriage, when she told him of her previous visa applications having included false information that she had two children in Cambodia. The Tribunal finds that were Mrs Im to have to return to Cambodia, this would cause significant hardship to Mrs Im's immediate family in Australia, specifically Mr Sim and Jessica. Mr Sim would be devastated by his wife having to return to Cambodia and, if Jessica were to remain in Australia with him, this would cause significant difficulties in terms of her care and upbringing. The Tribunal notes that Mrs Im's family are otherwise still in Cambodia, apart from a brother-in-law in Australia and "grandmother" to whom she provides support, although this grandmother is in fact a cousin of her biological grandmother.

65. Paragraph 2.18 of Direction No. 21 also requires decision-makers to consider relevant international obligations. The Applicant has pointed to obligations under the Convention on the Rights of the Child which the Respondent acknowledges, as in turn does the Tribunal.

66. Weighing up the primary and other considerations, in the Tribunal's view, the best interests of Jessica Sim outweigh any need for the Protection of the Australian Community, which is of minimal concern in this case, given the circumstances out of which Mrs Im's migration misconduct arose. With regard to the Expectations of the Australian Community, the Tribunal's view is that the community would view Mrs Im's situation humanely, albeit noting that there had been a breach of trust.

67. Thus, the Tribunal concludes that the discretion not to refuse the grant of a visa under s 501(1) of the Act should be exercised in the case of Mrs Im, and, therefore, sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

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

Associate

Date/s of Hearing 19 & 20 February 2002

Date of Decision 1 March 2002

Solicitor for the Applicant Mr K Murphy, Craddock Murray Neumann

Solicitor for the Respondent Mr M Allatt, Australian Government Solicitor