Brennan and Minister for Immigration and Multicultural and Indige nous Affairs [2003] AATA 1029 (13 October 2003)

Last Updated: 17 October 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1029

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2003/278

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Robert Brennan

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr RP Handley, Deputy President

Date 13 October 2003

Place Sydney

Decision

The Tribunal affirms the decision under review.

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

RP Handley

Deputy President

CATCHWORDS

IMMIGRATION -- subclass UF partner (provisional) visa - refusal on character grounds - past and present general conduct - discretion that the Tribunal may exercise where the Visa Applicant fails the character test - examination of the Visa Applicant's immigration misconduct - necessity to balance the expectations and protection of the Australian community against the hardship to the Applicant - held decision of the Respondent affirmed.

Migration Act 1958 ss 499, 501, 501(6)(c)(ii)

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

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

REASONS FOR DECISION

13 October 2003

Mr RP Handley, Deputy President

1. This is an application by Robert Brennan ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 14 January 2003 to refuse the grant of a subclass UF partner (provisional) visa to the Applicant's spouse, Orawatsa Duangwong ("the Visa Applicant").

2. At the hearing, the Applicant was self-represented 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 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the Applicant at the hearing. Mr Brennan gave evidence in person and Ms Duangwong and her daughter Prapaipan Phaendintong gave evidence by conference telephone from Thailand.

Background

3. The Applicant, Robert Brennan, was born in Canberra on 17 January 1956 and is aged 47. He has worked as a self-employed building contractor and is currently working as a bricklayer in Sydney.

4. The Visa Applicant, Orawatsa Duangwong, was born in Thailand on 27 October 1955 and is aged 47. In 1981, she commenced a relationship with Pichet Phaendintong, which ended when the parties separated in February 1987. They had two children: a daughter, Prapaipan Phaendintong, born on 17 September 1984 and now aged 19, and a son, Paphon Phaendintong, born in July 1982, who is now aged 21 (T p112). They are both single and living in Thailand. In 1987, Ms Duangwong married Sanya Akabut. This relationship ended in divorce on 6 September 1991. They had one child, a daughter, Phanphika Akabut, born in October 1988 and now aged 15 (T p114).

5. On 21 July 1998, Ms Duangwong arrived in Australia on a visitor visa valid for three months from the date of arrival subject to a "no work" condition (T p70). On 21 October 1998, Ms Duangwong lodged an application for a protection visa on the basis of persecution by former husband claiming that she was in fear of further violence if she were to return to Thailand (T p36).

6. On 9 November 1998, a delegate of the Respondent refused Ms Duangwong's protection visa application on the basis that her fears of persecution were in connection with a personal matter which did not fall within Australia's protection obligations under the Refugees Convention (T p73). On 10 December 1998, Ms Duangwong lodged an application for a review of this decision by the Refugee Review Tribunal ("RRT") which on 27 May 1999, affirmed the decision (T p96).

7. In February 1999, Ms Duangwong and Mr Brennan met in the Haymarket, Sydney (T p117). In March 1999, they commenced a relationship (T p117). On 24 June 1999, Ms Duangwong failed to leave Australia when her bridging visa expired (T p7). On 14 August 1999, Ms Duangwong and Mr Brennan were married at Haberfield, Sydney (T p133).

8. On 16 November 1999, Ms Duangwong was arrested working illegally in a brothel in Sydney and detained in the Immigration Detention Centre at Villawood (T p7). On 20 November 1999, she left Australia under the supervision of officers of the Department (T p8).

9. On 30 June 2000, Ms Duangwong lodged an application for a subclass UF partner (provisional) visa at the Australian Embassy in Bangkok (T p10). On 25 September 2001, she was interviewed by a Senior Migration Officer of the Department at the Embassy. She was interviewed a second time on 1 May 2002.

10. On 14 January 2003, a delegate of the Respondent decided to refuse the grant of a visa to Ms Duangwong on the ground that she did not pass the character test because of her past and present general conduct and having declined to exercise the Respondent's discretion under s 501(1) of the Migration Act 1958 ("the Act") (T p12).

11. On 19 February 2003, the Applicant lodged an application for a review of this decision with the Tribunal.

Relevant Law and Policy

12. 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 is 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; ...

13. 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"..

14. 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.

15. The issue for the Tribunal to determine in this case is, therefore, whether Ms Duangwong is not of good character having regard to her past and present general conduct. If the Tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Ms Duangwong.

Evidence

Robert Brennan (the Applicant)

16. Mr Brennan said he used to work as a self-employed building contractor in Canberra but for the past four years has been working as a bricklayer in Sydney. He first me Ms Duangwong in February 1999 on a Sunday when he was walking through the Haymarket in Sydney. He noticed that she was looking lost and when he asked whether he could help her, she told him that she was looking for "David Jones" and, because he had nothing better to do, he offered to show her the way and they had coffee afterwards. He asked whether he might take her out and, when she agreed, he took her sightseeing and afterwards to dinner. After this first meeting, they went out together on a number of occasions and then two to three weeks later, he invited her to stay with him. She was sharing a unit in Redfern at the time with a friend, sleeping on the sofa which was not very comfortable. She accepted his invitation, moved in and they commenced a relationship..

17. Mr Brennan said Ms Duangwong told him she was divorced, with three children, and worked as a hairdresser. She had come to Australia for a holiday and after that started working in order to support her family. Her children's uncle was staying with them in Bangkok and she was sending him money for their support. Mr Brennan acknowledged that it did occur to him at the beginning of their relationship that she might be looking for an Australian man in order to prolong her stay, but their relationship soon moved on from there. He believes his wife is genuine about their marriage.

18. Mr Brennan said he did not know at the time they met where Ms Duangwong was working, but he learned later that she was working in a brothel in Surry Hills known as "All Asian Women".. She said she had never done that work before in Thailand. She had been a hard worker as a hairdresser and street vendor. Apart from working in the brothel, Ms Duangwong also did a bit of hairdressing in Sydney as a favour for friends and on one occasion she also worked in a restaurant but it did not suit her.

19. Mr Brennan said when Ms Duangwong showed him her passport early in their relationship, he thought she was in Australia on a visitor visa and was not aware that she had overstayed her visa. About a month after they started living together, she told him she had been to see a solicitor in Chinatown who had prepared the paperwork to enable her to apply for a "liberty" visa. At that time, Mr Brennan had no knowledge of different categories of visa and he was not aware that she had applied to the RRT for a review of the refusal of her application. He later learned that she had applied for a refugee visa.

20. Mr Brennan said that in July 1999, he took Ms Duangwong to Queensland for a three day weekend. At the airport, she produced her passport for identification purposes when collecting her ticket. He then realised that her visa had expired. He would have not have gone by plane to Queensland if he had been aware of this because of the risk that someone at the airport might notice that her visa had expired and might detain her. Prior to that time, he had not asked Ms Duangwong about her status in Australia. He assumed that she had a twelve month visa as a result of her application to extend her visa.

21. While they were in Queensland, they made the decision to get married. Mr Brennan said he is not getting any younger, they got on well together, and he wanted Ms Duangwong to come back and live with him in Australia and bring her children. On returning to Sydney, they arranged to be married by a civil celebrant in Haberfield on 13 August 1999. After the marriage, they had a celebratory meal in a Thai restaurant in Chinatown which her friends attended. Mr Brennan did not invite his family because Ms Duangwong had told him she would probably have to go back to Thailand for at least two years. He did not, therefore, want to invite his parents and other family members and friends because they would be spending money and it would be at least two years before his wife was able to return to Australia and, even then, he was not sure of this. Thus, it was a quiet wedding.

22. Mr Brennan said after they were married, he and his wife both continued working - she at Surry Hills. However, she would always be home to cook "tea" for him and they spent their weekends together. He was aware that after July 1999, she was in Australia illegally but they did not seek any migration advice. They wanted to spend New Year's Eve together for the beginning of the new millennium and, in the New Year, Ms Duangwong planned to return to Thailand and apply for a visa from there. Mr Brennan thought it was merely a matter of completing a visa application which would enable her to gain re-entry to Australia. He had no idea of the difficulties that would be involved.

23. On 16 November 1999, Ms Duangwong was arrested while working at Surry Hills and taken to Villawood. She phoned him from Villawood and he went to see her. He bought her a ticket to enable her to return to Thailand and paid the immigration charges. She was accompanied to the airport and flew home to Bangkok. Since then, they have maintained contact by speaking on the phone at least twice a week. Mr Brennan has also been to visit Ms Duangwong in Thailand on four occasions. His first visit was in January 2000 when he went to Thailand for two weeks. He did not actually stay in her house because it is very small and there is only one large bedroom upstairs where they all sleep. She lives there with her two daughters. Her son lives with his uncle and auntie on his father's side, which is about half hour from where Ms Duangwong lives. Because there was very little room in the house and because it was not air-conditioned, Mr Brennan decided to stay in a motel and Ms Duangwong stayed there with him. He went out with her and her children to meals together and shopping. He also spent a few days with Ms Duangwong doing "a bit of a tour".. Mr Brennan also met her father who was ill and whom she was looking after at the time. Her father died not long after, her mother already being deceased. Mr Brennan also met two of his wife's brothers. She does not see much of other members of her family. His wife's brother, Unsa, and his wife stayed in Ms Duangwong's house and looked after her two daughters while she was in Australia. Unsa was there a lot when Mr Brennan visited and he looked after the children when Mr Brennan and his wife had their short holiday together.

24. Mr Brennan's second visit to Thailand was in September 2000 for about 10 days during the Olympics. This was during the wet season and they stayed in Bangkok going out together for meals and shopping etc. Again, he and Ms Duangwong stayed in a motel, there being insufficient room in the house.

25. Mr Brennan said his wife has set up the downstairs of her house as a hairdressing salon. She supports her family from the money she earns as a hairdresser but she also sells fruit and other things on the street. The childrens' fathers do not contribute to their maintenance. The father of her older daughter, Prapaipan, has not wanted anything to do with her from the time of her birth because he was Chinese and he did not want a daughter. Sanya Akabut, the father of her younger daughter, Phanphika Akabut, visits her from time to time and gives her a bit of money for sweets etc, but has never been prepared to pay for her support or education.

26. Mr Brennan's third visit to Thailand was in March 2001 for the Chinese New Year, when he stayed for two weeks. He and his wife and her two daughters went and stayed at the place where Ms Duangwong was born, spent the Thai New Year there and did some sightseeing. After returning to Bangkok, they all went on a day trip to an island accompanied by his wife's son. Mr Brennan said he gets on well with the children although the youngest one does not speak much English. The older daughter speaks English fairly well and they often speak on the phone. His wife's son was learning English at that time and his English has improved since then. His wife's English is quite good. Mr Brennan has learnt a few basic Thai words but finds the Thai language very difficult.

27. Mr Brennan said his fourth visit to Thailand was in October 2002 for two weeks. Most of his stay was spent in Bangkok. However, once again they went on a day trip to the sea for swimming etc, taking the three children with them. On this visit, he and his wife and her two daughters stayed in a townhouse further out from the centre of Bangkok which his wife owns and used to rent out.

28. Mr Brennan said he first started sending money to Thailand in about March 1999 after Ms Duangwong commenced their relationship. This was partly his money and partly his wife's and they sent about $500 on each occasion. After his wife returned to Thailand, initially, he sent money every month or two - about $500 or sometimes a bit less. He used to send money by telegraphic transfer or in the mail. However, he now has a St George Bank account with cards, which enable him to put money into his account in Australia and his wife is able to withdraw money from the account using her card at an Automatic Teller Machine ("ATM") in Thailand. Usually, he puts $50 or $100 into the account each week. He also sometimes pays in extra in order to pay expenses such as Prapaipan's university and campus accommodation fees. Prapaipan is studying hotel management at university.

29. Mr Brennan said he is lonely and misses his wife's cooking.. He also finds it hard financially. He is living in the same rented two bedroom unit in Glebe. He does not have a house in Canberra. He does not know what he will do if his wife is not granted a visa. He would not be able to go and live in Thailand without working and he doubts he would be able to work there. Probably, he would continue going to visit his wife and her family on a regular basis. He feels an obligation to help her children until they are independent. He noted that Ms Duangwong's son is now working.

Orawatsa Duangwong (the Visa Applicant)

30. Ms Duangwong said her friend invited her to visit Australia and she planned to stay for three months and to spend that time touring around. She purchased a return air ticket valid for one year, which she paid for herself. She arrived in Sydney on 22 July 1998 on a visitor visa, travelling with her friend who had been in Thailand. Ms Duangwong stayed with her friend at her home in Gosford for nearly two months. At first they went sightseeing, although they only visited Sydney twice. After about a month, Ms Duangwong's friend asked whether she would like to earn some money. Her friend has a massage parlour near Gosford station. Ms Duangwong worked at her friend's shop once or twice but decided she did not want to do this because it involved performing massage in the nude and she was embarrassed doing this. Her friend knew Ms Duangwong had a three month visa but she did not know whether it could be renewed. She also did not know for how long Ms Duangwong's return ticket to Thailand was valid. Her friend told Ms Duangwong you can "work anytime - don't worry about being arrested".

31. After being in Australia for about two months, Ms Duangwong phoned another friend in Ingleburn whose nickname is "Chum".. Chum came and collected Ms Duangwong and took her to her home in Ingleburn where Ms Duangwong stayed for some months. Chum visits Thailand all the time and they often go shopping together. She also comes to see Ms Duangwong to have her hair done. Chum was married to an Australian man from whom she is now divorced but who looks after her financially.

32. Not long after she moved to stay with her friend Chum, when Ms Duangwong's visa was about to expire, Chum took Ms Duangwong to see a lawyer whom she said was good. He looked at her passport and said he could not extend her visitor visa but he said he could get her another visa valid for two years having done this successfully for others. She wanted to stay a bit longer in Australia because it is a beautiful country and she wanted to see more of it. The lawyer told her to write a letter saying her husband had been violent towards her and she was scared of returning to Thailand. However, she refused to do this. So the migration agent wrote a story on her behalf. The lawyer asked for her passport and his fee of approximately $1,200 and gave her something to sign (T p242). When the application was refused, the lawyer advised her to appeal and she paid him another $500 for this purpose. Ms Duangwong said the lawyer lodged her RRT application for her. She did not herself follow up the application because the lawyer said he would let her know the result. Ms Duangwong described the visa which the lawyer applied for on her behalf as a "liberty" visa. While the application was being processed, the lawyer obtained a three month visa for her and when her visa was refused and that refusal was affirmed by the RRT, he told her that she had to return home. However, she wanted to stay longer and although she understood that she was remaining in Australia illegally, she decided to do so.

33. Ms Duangwong said when she was living at Gosford and Ingleburn, everything was provided for her and she had no real expenses. She could afford to remain in Australia because she had approximately 30,000 baht of her own money and some additional money that Chum lent her. Her own money was derived from having sold land prior to coming to Australia, some of the proceeds of which she gave to her brother and sister-in-law who looked after her children whilst she was in Australia, staying with them at Ms Duangwong's house. Ms Duangwong said she only worked at the brothel at No 10 for about two months before she was arrested and after she had moved in with Mr Brennan. Even then, she did not work every day. Ms Duangwong said she went to the shop at No 10 with her friends on many occasions before she ever worked there. Her friends played cards and, because she did not do so, Ms Duangwong helped in the preparation of food. Then one day, the owner of the shop asked Ms Duangwong whether she would like to work there but suggested that she should not do this too often because she was married. Ms Duangwong denied she told a departmental officer in an interview conducted on 1 May 2002 that she had worked as a prostitute in various locations.

34. Ms Duangwong said she raised money by selling some of the gold jewellery which she had with her - some gold chains. She also sold clothes, cosmetics and Thai medication for about 20,000 baht, equivalent to about Aus$1000. She said she did not tell Mr Brennan about this. The clothes, cosmetics and Thai medication she had purchased more cheaply in Thailand and sold in Australia at a profit to her Thai friends.

35. Ms Duangwong started sending money to her children when she was staying with her friend Chum at Ingleburn. Chum sent it for Ms Duangwong via her bank. Then when Ms Duangwong started living with Mr Brennan and he was sending money to assist in supporting her family in Thailand, she started work in order to help with the payments. Ms Duangwong acknowledged that it was wrong to work without permission, but she needed money to support her children and buy her ticket to return to Thailand. She specifically denied that she was working at the time she met Mr Brennan. Apart from working in the brothel, Ms Duangwong said she did not work, except for a little hairdressing she did for a friend as a favour. Ms Duangwong denied that she applied for a refugee visa in order to be able to work.

36. Ms Duangwong said she had another boyfriend called Alan while she was living at Ingleburn and before she met Mr Brennan. She never lived with Alan. She had met him when him came to visit her friend Chum in about October 1998 and they went out together for about two months. He wanted her to marry him. Ms Duangwong denied that she was looking for an Australian man to marry her.

37. At the time she met Mr Brennan, Ms Duangwong was still spending most of her time staying with Chum at Ingleburn although she sometimes stayed with her Thai friend at Redfern where she slept on the sofa although this was not very comfortable. She met Mr Brennan at Haymarket in Sydney. She had made an appointment to meet a friend at Centrepoint. Mr Brennan was there in the Haymarket and smiled at her so she asked him how to get Centrepoint. He then offered to take her there and afterwards they went sightseeing, including to the Harbour Bridge, walking around until it was dark. He then asked her to have dinner with him and they exchanged telephone numbers. After meeting up on a few other occasions, Mr Brennan asked her to stay so she decided to move in with him.

38. Ms Duangwong said after four or five months, they loved one another and she suggested that they get married. She cooked for him and at that stage she did not work very much - mostly doing housework. He helped her with the money she was sending back to Thailand for her children. However, she did not want to ask him for money and this is why she went to work and in the end got arrested. Even when she was working, she always got home before Mr Brennan and cooked for him. He worked hard in the building industry. She was happy staying with Mr Brennan, although still anxious at not having a visa. Mr Brennan took her to the Gold Coast for a short holiday. She told him about her visa but he was not really interested; he was not aware of her immigration status in Australia until she was arrested.

39. Ms Duangwong said until her arrest, she had wanted to stay for Christmas 1999 and then return to Thailand, possibly after the Olympic Games. She explained that when she was arrested, she described Mr Brennan as her boyfriend rather than her husband because her friend in Gosford had advised her that if she was ever arrested she should not say she was married. Otherwise, the Department would think she had got married to obtain a visa. Thus, on her arrest she said she was divorced. Her friend Orovan was also arrested in the brothel at the same time and now lives in New Zealand.

40. Ms Duangwong was asked about answers she gave at the interview when she was arrested. She stated at the interview "my ex-husband in Thailand always abuses me". Ms Duangwong said this had happened quite often until her brother came and lived with her to stop her ex-husband, Sanya Akabut, trying to get back together with her. After her brother came and lived with her, because Sanya was afraid of her brother, the abuse did not happen so much. Ms Duangwong denied that Sanya was living in Ms Duangwong's household both before and after she was in Australia. She said Sanya was coming to visit almost every day after she returned to Australia so she got her brother to warn him against this. Sanya never stayed at her house.

41. Ms Duangwong said her daughter Prapaipan accompanied her to the interview at the Australian Embassy on 1 May 2002. Ms Duangwong could not tell the interviewer what work she was doing in Australia because Prapaipan was present and she had not told Prapaipan that she had worked in a brothel. Ms Duangwong said there had been some confusion with the interviewer in terms of what Prapaipan had said about who was living with her and her sister while Ms Duangwong was in Australia. In fact, only Ms Duangwong's brother, who Prapaipan referred to as "uncle", had stayed there with Prapaipan and her younger sister.

42. Ms Duangwong said Mr Brennan has been to visit her in Thailand on four occasions since she has returned from Australia. The front room of her house is set up as a hairdressing and beauty salon where she works full-time to support her family. The house has only one large room upstairs where everybody sleeps. Thus, when Mr Brennan came to visit, he stayed in a hotel nearby which also had air-conditioning. He stayed in the hotel on the first three visits, but on the fourth visit he stayed with Ms Duangwong and her children in her other house on the outskirts of Bangkok which had previously been rented out.

43. Ms Duangwong said if she is refused a visa, she will be very sorry. She loves Mr Brennan and, having waited for him for four years, misses him very much. She wants to take care of him and to be with him until they are old. Her children also love him very much. He sends her money for the children's education. If she is refused a visa, she hopes that he will continue to come and stay with her in Thailand.

Prapaipan Phaendintong

44. Ms Phaendintong said while her mother was away, her uncle and auntie (her mother's brother and his wife) looked after her and her sister and stayed with them in the house. Her uncle and auntie are no longer living with them but have returned to their own home. Ms Phaendintong said her mother used to send money from Australia to her uncle to support them whilst she was away. Her uncle paid for Ms Phaendintong and her younger sister's food and other expenses while they were at school. Ms Phaendintong's older brother lives with their uncle on their father's side although sometimes he stays with them at their mother's house overnight when he comes to visit.

45. Ms Phaendintong said she was very excited when Mr Brennan first came to visit them. She had previously talked to him on the phone but she had never met any white foreigners and he seemed to be a fun person. Since that first visit, he has visited on several more occasions and Ms Phaendintong said "I really love him like my father".. He is a responsible person. Ms Phaendintong said she has not seen her own father since she was 16. He never sends any money for her. She is now studying for a bachelors degree in Hotel Management at Kasetsart University. After she has finished her degree, she would like to be a public relations officer.

46. Ms Phaendintong was asked about accompanying her mother to the interview at the Australian Embassy on 1 May 2002. Ms Phaendintong said she sat outside the interview room and was only invited in towards the end. She was a bit confused at the interview. She recalls her mother tapping her on the knee and saying that she had sent cash from Australia for her and her sister's support via her friend Chum. However, Ms Phaendintong said she could not remember receiving money directly from Chum. Ms Phaendintong said her mother had sent money through her uncle and she did not recall having received any money directly from her mother. The uncle Ms Phaendintong referred to in the interview was her uncle Nop, her mother's older brother. Ms Phaendintong acknowledged that she told the interviewer that she and her sister had been living with their "stepfather", but by this she meant her uncle. Ms Phaendintong admitted that she lied when she told the interviewer that she had received 120,000 baht through her account. It was also wrong for her to have said that she gave money to her brother and sister. Ms Phaendintong said she did not give them any money because she did not receive any money.

47. Ms Phaendintong said her younger sister's father is Sanya Akabut. Before her mother went away and during the time that she was away, Mr Akabut came to visit her sister and still comes sometimes but her uncle does not like him coming too often. This is because Mr Akabut wanted to try and get back together with her mother, but her mother does not want anything to do with him. Mr Akabut has not come to visit very much since her mother married Mr Brennan.

48. Ms Phaendintong said she lied to the interviewer about Mr Akabut living in the house whilst her mother was away. She and her sister had never lived with him in the house during this time. She lied to the interviewer because she was scared that if her mother were granted a visa, her mother would go back and work again in a bad place in Australia. However, when she later realised what she had done, Ms Phaendintong phoned the Embassy and apologised. When Mr Brennan came to visit them in Thailand, Ms Phaendintong realised that he and her mother loved each other very much and that she had done the wrong thing. Ms Phaendintong acknowledged that at the time of the interview, Mr Brennan had visited a couple of times and she had got to know him well. However, she was still not confident in her mother and felt very emotional. Her mother had only ever told her that she had worked in a restaurant and as a hairdresser in Australia.

Submissions

Respondent

49. Mr Allatt said the Respondent contends that Ms Duangwong does not pass the character test as a result of her past general conduct, which involves immigration fraud. Shortly after Ms Duangwong arrived in Australia, her intentions changed and she decided to stay longer than that permitted by her visitor visa. After about a month staying with her friend in Gosford, she worked for about two days at the friend's massage parlour. Then when she was staying with her friend Chum in Ingleburn, she undertook some hairdressing and restaurant work. After meeting Mr Brennan in February 1999, she moved in with Mr Brennan but only acknowledges working at No 10 for several months prior to her arrest in November 1999. This contradicts Mr Brennan's evidence who said Ms Duangwong was working both before and after they met doing the same kind of work as that at No 10. The Respondent contends that Mr Brennan's evidence is to be preferred in this regard.

50. With respect to Ms Duangwong's protection visa application, Mr Allatt noted that the supporting statement and the application seems to contain a reasonable degree of truth concerning Ms Duangwong's second husband Sanya Akabut. Allegations about Mr Akabut were developed into an exaggerated refugee claim, even though, as Ms Duangwong admits, she had no fear of returning to Thailand. Essentially what she wanted was a two year visa to enable her to remain and work in Australia. It was not a genuine application and she took little interest in the progress of the application and did not attend the hearing before the RRT. There is no evidence to suggest that she would have not have received the letter notifying her of the RRT hearing given that she maintained contact with her friend Chum to whose address notification of the hearing would have been sent by Ms Duangwong's migration agent.

51. With regard to Ms Duangwong's relationship with Mr Brennan, Mr Allatt said that the Respondent does not take issue with Mr Brennan's genuineness, although it is a little puzzling as to why Mr Brennan was not more interested in Ms Duangwong's migration status as their relationship developed. Mr Brennan's evidence was that he did not realise that Ms Duangwong's visa had expired until July 1999 when she showed her passport as identification when collecting her ticket for their trip to Queensland. While Mr Brennan's states that he knew nothing of Ms Duangwong's refugee claim, he was aware that she wanted to stay in Australia until 2000.

52. The Respondent submits that Ms Duangwong does not pass the character test as a result of her past and general conduct. Mr Allatt contended that Ms Duangwong had lied to the Tribunal about her working and as to her selling clothing, jewellery and cosmetics in order to send money back to Thailand. Mr Allatt said Mr Brennan's evidence about these matters should be preferred. Mr Allatt noted contradictions in the evidence about who looked after Ms Duangwong's children while she was in Australia and Prapaipan's admission that she lied during her interview at the Australian Embassy in Bangkok. Mr Allatt said her explanation for lying - that she did not want her mother to obtain a visa - is not plausible given that she had already met Mr Brennan whom she liked.

53. With regard to the exercise of the discretion in s 501(1) of the Act, and the first of the primary considerations, the protection of the Australian community, Mr Allatt said Ms Duangwong had committed a number of serious offences including immigration fraud, working in breach of the conditions of a visitor visa, lodging a false protection visa application, and overstaying her bridging visa and working without permission. In addition, he contended that Ms Duangwong lied to the Tribunal in giving evidence. He also questioned her motives in marrying Mr Brennan. Mr Allatt submitted there is a real risk that Ms Duangwong will repeat her misconduct given the history of her repeated false claims including her lying to the Tribunal in giving evidence. In such circumstances, the refusal of a visa would deter others who may be contemplating similar misconduct, and the Australian community would expect that Ms Duangwong's application for a visa would be refused.

54. Mr Allatt noted there is only one child named in Ms Duangwong's application, her daughter Prapaipan who is now aged over eighteen. The Respondent acknowledges that the refusal of a visa to Ms Duangwong would cause hardship to Mr Brennan. However, he was aware of Ms Duangwong's being in Australia without a valid visa at the time they were married. Mr Allatt concluded that any compassionate considerations in respect of Mr Brennan are outweighed by the primary considerations of the protection and expectations of the Australian community.

Applicant

55. Mr Brennan said he had told Ms Duangwong that she should not lie any more and he was unable to explain why she lied about her working in Australia and sending money back to Thailand - perhaps she thought it more important to try and establish that she had only worked for a short period. Mr Brennan said, initially, he presumed that Ms Duangwong was here for 12 months and that after she would return to Thailand. He did not think to question this.

56. With regard to who looked after Ms Duangwong's two children whilst she was in Australia, Mr Brennan said to his knowledge her former husband, Sanya Akabut, was not living in Ms Duangwong's house. Mr Akabut was not present at the house when Mr Brennan first visited Thailand. The two girls were there and their uncle and sometimes their auntie, but not Ms Duangwong's son except when he came to visit. Mr Brennan said Ms Duangwong's daughter Prapaipan did not know what work her mother was doing in Australia until the first interview at the Australian Embassy in Bangkok on 1 May 2002. Ms Duangwong's younger daughter and her son still do not know.

57. Mr Brennan said he does not know what he will do if Ms Duangwong's application for a visa is refused. He cannot afford to go and live in Thailand but also cannot abandon the family and, in particular, the children, to whose support he is committed until they are independent.

Application of the Law and Findings

58. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Duangwong passes the "character test" having regard to her past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry ...

59. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).

60. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Duangwong, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

61. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9(c)).

62. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. The Tribunal finds that Ms Duangwong arrived on Australia on 21 July 1998 on a visitor visa valid for three months from the date of arrival, subject to a "no work" condition. For about the first two months, Ms Duangwong stayed with her friend in Gosford. Towards the end of that stay, Ms Duangwong's friend invited her to work in her massage parlour in Gosford. Ms Duangwong's evidence is that she tried this for about two days but did like the work because it involved her undertaking massage in the nude.

63. After about two months, Ms Duangwong moved to stay with her friend Chum in Ingleburn. It was Chum who introduced her to a migration agent, Chris Panasbodi, whose office is in the Haymarket in Sydney. Mr Panasbodi advised Ms Duangwong to apply for a protection visa and appears to have concocted a statement supporting her claim based on information Ms Duangwong had supplied to him. Ms Duangwong acknowledged that she was not in fear of returning to Thailand and that the application was lodged purely with the objective of obtaining a further visa to enable her to stay on in Australia.

64. When Ms Duangwong's protection visa application was refused, Ms Duangwong applied to the RRT for a review of the decision. As the Respondent has suggested, she seems to have been somewhat disinterested in the process given her failure to attend the RRT hearing of which, the Tribunal assumes, she would have received notification through her friend Chum whose address was nominated in Ms Duangwong's application. After the RRT affirmed the decision, Ms Duangwong's bridging visa would have expired on 24 June 1999. Ms Duangwong did not depart Australia but remained unlawfully until detained while working at a brothel.

65. Mr Brennan was frank and open with the Tribunal in giving evidence and in making his submissions. The Tribunal has no doubt as to the truth of his account and as to his genuineness in so far as his relationship with Ms Duangwong is concerned. The Tribunal notes that prior to her relationship with Mr Brennan, Ms Duangwong had another boyfriend, Alan, in the latter part of 1998. Whilst Ms Duangwong denied that she was looking for an Australian man to marry and asserted the genuineness of her relationship with Mr Brennan, in the Tribunal's view, there are questions as to her motives in forming a relationship with Mr Brennan, at least initially. This is particularly so given the lack of credibility of her evidence in relation to her working in Australia and sending money home for the support of her children in Thailand. Ms Duangwong said she only worked at the brothel at No 10 in Surry Hills in the last two months before her detention. She claims to have raised money by selling clothes, gold jewellery, cosmetics or medication - none of which she mentioned to Mr Brennan. The Tribunal prefers Mr Brennan's evidence, which is that Ms Duangwong was working in the brothel at No 10 at the time that they met in February 1999 and that she continued to work there until the time that she was detained.

66. In view of the seriousness of Ms Duangwong's misconduct, including working without permission, lodging a false protection visa application, making false and misleading statements, remaining in Australia after her bridging visa had expired and continuing to work without permission, and lying in giving evidence to the Tribunal, the Tribunal is of the view that she does not pass the character test by reason of her past and present general conduct.

67. Having decided that Ms Duangwong does not pass the character test, the Tribunal must then consider whether to exercise the residual discretion under s 501(1) not to refuse her the grant of a visa. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. 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.

68. 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.

69. With regard to the protection of the Australian community, paragraph 2.4 states:

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...

70. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a) the seriousness and nature of the conduct;

(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

71. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

72. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".

73. With regard to the first primary consideration, the protection of the Australian community, the Tribunal has found that Ms Duangwong committed serious offences as set out above. The Tribunal does not consider that there are any mitigating factors. Ms Duangwong chose to remain in Australia because she liked it here when she could have returned to Thailand to be with her family, where she had the means to support them through her work as a hairdresser. In the Tribunal's view, Ms Duangwong's conduct indicates that she would be prepared to continue to make false and misleading statements if she perceives this to be for her benefit. The Tribunal recognises that the refusal of a visa in such circumstances is likely to deter others who may be contemplating committing similar misconduct.

74. With regard to the second primary consideration, the expectations of the Australian community, the Tribunal considers that the Australian community would, in such a case, expect the person's application for a visa would be refused.

75. The third primary consideration is the best interests of the child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, 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".

76. The only child included in Ms Duangwong's application is her older daughter Prapaipan who is now aged 19. She is therefore no longer a child for the purposes of Direction No 21. The Tribunal notes that Prapaipan has never been to Australia and is currently a university student who is supported and cared for by her family in Thailand.

77. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, "it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; 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 caused to immediate family members; the family composition of the non-citizen's family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.

78. The Tribunal finds that, for Mr Brennan's part, his relationship with Ms Duangwong is a genuine one. The Tribunal considers that Ms Duangwong is also now genuine as to her relationship with Mr Brennan although the Tribunal has doubts as to her initial intentions in entering into this relationship. Mr Brennan was not at first aware of the difficulties associated with Ms Duangwong's migration status in the early months of their relationship, but he become aware that she was in Australia unlawfully in July 1999 when he realised that her visa had expired. This was some weeks before he and Ms Duangwong were married. While Mr Brennan's evidence is that they were both aware that Ms Duangwong would need to return to Thailand in order to lodge a spouse visa application, they decided that Ms Duangwong would postpone doing this until at least early 2000. In the meanwhile, Ms Duangwong continued working unlawfully.

79. Although Ms Duangwong has friends in Australia, all her family, except Mr Brennan, are in Thailand. She has three children with whom it appears she has a good relationship. She has her own hairdressing business for the support of her family. Mr Brennan was single prior to his meeting Ms Duangwong and his family is based in Canberra. Not withstanding Ms Duangwong's working, Mr Brennan has continued to contribute to the support of her children and gave evidence that he feels committed to do so until such time as they are independent. He has also visited Thailand on four occasions since Ms Duangwong returned there on 20 November 1999. Mr Brennan does not own a house. He works as a bricklayer and the Tribunal accepts his evidence that it is unlikely, given his lack of any Thai language skills, that he would be able to work in Thailand. Thus, if a visa is refused, his and Ms Duangwong's relationship could probably only be maintained by his continuing to visit Thailand on a regular basis whilst working in Australia. This obviously subjects him to financial constraints and emotional hardship.

80. Although acknowledging the hardship to Mr Brennan, in the Tribunal's view, the primary considerations of the protection and expectations of the Australian community clearly outweigh the other considerations. Thus, the discretion in s 501(1) should not be exercised in Ms Duangwong's favour and the Tribunal affirms the decision under review.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

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

Associate

Date/s of Hearing 18 and 19 September 2003

Date of Decision 13 October 2003

Representative for the Applicant Self represented

Representative for the Respondent Mr M Allatt, Solicitor