Wilking and Minister for Immigration and Multicultural and Indige nous Affairs [2003] AATA 123 (7 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 123

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/983

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Stephen John Wilking

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr RP Handley, Deputy President

Date 7 February 2003

Place Sydney

Decision

The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Has Vong passes the character test pursuant to s 501(6) of the Migration Act 1958.

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

RP Handley

Deputy President

CATCHWORDS

IMMIGRATION - spouse visa - subclass 309 (provisional) visa - character test - whether the Visa Applicant passes the character test - examination of the Visa Applicant's immigration misconduct - held that there is no evidence as to bad character and no intention to mislead or deceive the Australian immigration authorities by the Visa Applicant's conduct - held that the Visa Applicant passes the character test - decision of the Respondent set aside.

Migration Act 1958 ss 499, 501(1), 501(6)

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

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

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

REASONS FOR DECISION

7 February 2003

Mr RP Handley, Deputy President

1. This is an application by Stephen Wilking ("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 5 June 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to Mr Wilking's spouse, Has Vong ("the Visa Applicant").

2. At the hearing, the Applicant represented himself and the Respondent was represented by Sharon Hanstein, Solicitor, of Blake Dawson Waldron, Solicitors. The documents before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. The Applicant gave evidence in person and the Visa Applicant gave evidence by conference telephone.

Background

3. The Applicant, Mr Wilking, was born in Marrickville, Sydney, on 8 August 1957 and is aged 45. On 16 April 1988, he married Samnang Eng and they had two children, Joanne who was born on 22 January 1989 and is aged 14, and Jessica who was born on 18 August 1995 and is aged seven. Mr Wilking and Ms Eng separated in June 1996 and were divorced on 30 September 1997. Mr Wilking has been in receipt of a disability support pension since April 1997 and has worked as a volunteer at Cabramatta Community Centre for 10 to 12 hours per week since 19 November 1997.

4. The Visa Applicant, Ms Has, was born in Svay Rieng Province, Cambodia, on 5 February 1975 and is aged 27. Currently, she works as a project assistant for the Reproductive Health Association of Cambodia. Ms Has' sister, Has Lak Khena migrated to Australia in 1996 and met Mr Wilking in about August 1998. She and her husband have shared a flat with Mr Wilking since February 2000. In August 1999, Has Lak Khena showed Mr Wilking a photograph of her young sister, Has Vong and, shortly afterwards, Mr Wilking contacted her by telephone. After regular contacts over a period of two years, on 16 September 2001, Mr Wilking flew to Phnom Penh arriving at Phnom Penh International Airport on 17 September 2001 where he and Has Vong met for the first time.

5. On 23 September 2001, Mr Wilking and Ms Has were married in Phnom Penh. Mr Wilking became ill and returned to Australia on 26 September 2001. He has since spent a month in Cambodia with his wife from mid-May to mid-June 2002. On 26 November 2001, Ms Has applied for a subclass 309 spouse (provisional) visa sponsored by Mr Wilking. She was interviewed at the Australian Embassy in Phnom Penh on 5 June 2001. At the interview, she was asked to name her siblings. She named her sister, Has Lak Khena, but not three other siblings with whom, Ms Has later explained, her sister had a dispute with before migrating to Australia in 1996. As a result, Ms Has and her sister Has Lak Khena became estranged from these three siblings and no longer regard them as a part of their family.

6. At the interview, Ms Has was also asked about two 1994 migration applications in which she had been named as a dependent family member. In those applications, Ms Has' date of birth was stated as 10 October 1979. She denied any knowledge of those applications.

7. On 5 June 2002, a delegate of the Respondent decided to refuse the grant of a visa to Ms Has on the ground that she is not of good character 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").

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 the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

12. The issue for the Tribunal to determine in this case is, therefore, whether Ms Has 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.

ORAL EVIDENCE

Stephen Wilking (the Applicant)

13. Mr Wilking said he was first married in April 1988 and has two children from that marriage, Joanne who is 14 and Jessica who is seven. His first wife was a Cambodian refugee who arrived in Australia in 1985. She was a permanent resident at the time of their marriage. As a result of the anxiety disorder and depression which he suffers, Mr Wilking stopped work in May 1996. He said he is unable to cope with stress. Thereafter, he got into financial problems and was forced to sell his house to pay off his debts. The selling of the house was a significant factor in Mr Wilking and his wife separating and in their irreconcilable differences which, ultimately, led to their divorce on 30 September 1997. The house was sold in December 1996 and Mr Wilking moved to Cabramatta.

14. In June 1997, Mr Wilking met a Ms Tran who suggested that he should go to Skillshare to undertake a work skills program. He undertook a course involving computers but found this difficult. Then in early October 1997, he was sent to the Cabramatta Community Centre for work experience. When the term of his work experience expired, he asked to stay on and has worked there as a receptionist ever since. Mr Wilking said he works at the Community Centre three to four hours a day. He enjoys the volunteer work and stays there as long as possible as he does not like to stay at home. His boss at the Community Centre permits him to use the phone there and to send his mail with the Community Centre mail. His work includes collecting and sorting the mail, assisting Cambodian clients which may involve interpreting on some occasions, and generally providing support to staff at the Centre. He can speak Khmer "reasonably fluently", although he cannot read or write in Khmer.

15. Mr Wilking first met his now sister-in-law, Has Lak Khena in October 1998 in Cabramatta. She invited him to visit her and her husband in November 1998 and he stayed to eat with them. Ms Has showed him a photograph of her sister and told him that she was a good person who was hard working and responsible. She said that her sister was keen to come to Australia but did not suggest this could be achieved if he married her sister. Has Lak Khena told him she migrated to Australia in 1996 sponsored by a friend, from whom she has subsequently been divorced, who was also coincidentally a friend of his ex-wife.

16. Mr Wilking said he contacted Has Vong by letter and phone in 1999. As a result of his work at the Community Centre, he was aware that if he were to marry Ms Has, there would be a good chance that she would be able to migrate to Australia. After corresponding with Ms Has and speaking with her on the phone over a period of some time, she invited him to visit her in Cambodia. However, he was not confident of travelling because of his medical condition and his reliance on medication. At that time, he needed to "get off" valium and did not wish to travel without having done so. In early September 2001, Has Lak Khena received a phone call from her sister saying that their mother was very sick with a liver problem. Mr Wilking considered flying with Ms Has to Cambodia but at that stage he felt too unwell.

17. Has Lak Khena flew to Cambodia on 2 September 2001. Over the next two weeks, Mr Wilking felt better and, on 16 September 2001, he flew to Cambodia where, on the morning of 17 September 2001 he met Has Vong for the first time at Phnom Penh International Airport. They went together to buy some oranges at the Lucky Market and later, with Has Lak Khena, went to Prek Leab for lunch. There, in a romantic setting, Mr Wilking asked Has Vong to marry him. On the following day, they sent out invitations to their wedding and reception on 23 September 2001. The wedding took place in Ms Has' home in Phnom Penh and the reception was held afterwards at the Olympic Restaurant. After the reception, they went to Prek Leab to the Chinese Gardens for the taking of photographs. About 30 to 40 guests attended the wedding and about 60 to 70 guests attended the reception. Mr Wilking said he has been well received by his wife's family and friends in Cambodia.

18. The day after the wedding, Mr Wilking was feeling unwell, suffering from anxiety and diahorrea which made him weak and nauseous. He therefore decided to return to Australia and departed on 26 September 2001 on the same plane as his sister-in-law, Has Lak Khena. Shortly after arriving home in Australia, Mr Wilking went to see Pauline and David Lam of Newland Travel in Cabramatta who agreed to assist him in completing his wife's migration application form. Mr Wilking said before he went to Cambodia, he had not made any enquiries about the possibility of Ms Has migrating to Australia if they got married, but he believed, from working at the Cabramatta Community Centre, that she would be able to obtain a visa. He was not then aware that quite a few Cambodian applicants had been denied visas.

19. David Lam helped Mr Wilking fill out the migration application form on the basis of information provided by Mr Wilking. The form is in Mr Lam's handwriting. Mr Wilking had, in turn, asked his wife to provide him with details about various matters. She told him that she had never applied for any visa to come to Australia and, therefore, never been refused entry. When the forms had been completed, Mr Wilking posted the forms to his wife who signed them and lodged them at the Australian Embassy in Phnom Penh on 26 November 2001. He said his wife can read English. She studied English at university and they write to each other in English.

20. In late April 2002, Mr Wilking phoned the Australian Embassy in Phnom Penh to enquire about progress with his wife's application. He was told that processing of the application could take as long as 12 to 18 months. Mr Wilking was depressed by this news and emphasised to the officer that his wife's case was a genuine one. Not long after this, Mr Wilking received a phone call from his wife to say that her mother was sick. So, in mid-May 2002, Mr Wilking and his sister-in-law, Has Lak Khena flew to Phnom Penh. Mr Wilking said he was very upset to be parted from his two children in Australia. His younger daughter, Jessica, had been sick with a fever a few days earlier, but had recovered by the time he and Ms Has departed.

21. On arriving in Phnom Penh, Mr Wilking found that his mother-in-law, whom he loves, was very sick. He spent time with her and his wife in Phnom Penh, including attending a wedding with his wife, a photograph of which he showed the Tribunal at the hearing. His wife had also received a telephone call from the Australian Embassy inviting her to an interview on 5 June 2002. Mr Wilking accompanied her to the interview and waited for her. He said that when she came out of the interview, he could see that she was very upset. She had been told that she was a liar and that she had given false information and was not, therefore, of good character. They went home and Ms Has asked her mother about applications made in 1994 in which the interviewer said she had been included. Ms Has had not been aware of this and her mother had not previously told her about the applications. At the time, she was studying at university and was living away from home.

22. Ms Has' mother confessed that she had paid a man called Has Borey, to whom she was not related, a significant sum to include Has Vong as his dependent daughter in an application to migrate to Australia. Her mother said she had not told Ms Has about this previously because she was embarrassed. The application had never even got to the interview stage and her mother had lost the significant amount she had paid to Mr Borey. Her mother told her that the application had included a false date of birth for Ms Has of 10 October 1979. This date of birth had never been used by Ms Has and has not been used since. Ms Has was very angry with her mother. Mr Wilking stayed calm and said he would try and resolve the situation when he got back to Australia. Afterwards, they continued their honeymoon which included visiting the temple complex at Ankor Wat. They also went to visit Kampong Cham where his wife lives and works. His wife's mother, who lives in Phomn Penh, now has a carer and his wife's cousin also helps.

23. Mr Wilking said he hoped his health would be OK in Cambodia but he found that the heat knocked him around and, in particular, he developed chronic diahorrea. Nevertheless, he kept going. He departed Phnom Penh on 16 June 2002, arriving back in Sydney on 17 June 2002. Mr Wilking concluded from this longer trip that he is not well enough to live in Cambodia. He cannot tolerate the heat, he has constant diahorrea and he would not be able to obtain all his medication there. If he was well enough he would be able to fly to Cambodia and stay a week or two. He said to loose his wife would be devastating. On arriving back in Sydney on 17 June 2002, he went to see Pam and David Lam at Newland Tavel who advised him to appeal.

24. Mr Wilking said he is convinced his wife knew nothing of the 1994 applications. He observed her reaction when her mother told her about them and, clearly, her mother had not previously done so. With regard to his wife's three siblings who are not included in her spouse visa application, Mr Wilking said he became aware of these three other siblings in about late 1999 when his wife's sister, Has Lak Khena mentioned them. He understands that his wife's and her sister's disowning of these three siblings arose out of a quarrel when they asked Has Lak Khena for her share of the family property when she was about to migrate to Australia in 1996. His wife told him she was estranged from her three siblings as a result of the quarrel which was why she did not want to include them in the spouse visa application. Mr Wilking told David Lam, who was assisting him complete the application, of this and he did not include them on the form.

25. Mr Wilking said his wife did not invite the three siblings and they did not come to their wedding. However, Mr Wilking has met one of them - Has Rotmony, on one occasion, when he was taken by his wife to her workplace. His wife wanted him to meet her and it appeared to him that his wife and Has Rotmony were on speaking terms. Has Rotmony seemed to take a liking to him and was friendly. She agreed to help by receiving documents which Mr Wilking was sending to his wife at her workplace. This was because documents which Mr Wilking had sent to his wife previously had gone missing. Mr Wilking subsequently sent documents for his wife care of Has Rotmony's work address and also a few letters and a Christmas card for his wife.

26. Mr Wilking was asked about Has Srey Pov Khanha. He said she is a good friend of Has Lak Khena and he has met Has Srey Pov Khanha at his sister-in-law's unit a few times. He has never been to Has Srey Pov Khanha's place. In September 2001, Has Srey Pov Khanha travelled to Cambodia for a holiday on the same plane as Has Lak Khena and came back on the same plane as Mr Wilking. Mr Wilking, who had not travelled on the same plane as them going over, did not know that she had been to Cambodia until he met her on the plane returning to Australia. He has not met her brother, Has Borey, nor spoken to him on the phone.

27. Mr Wilking said his two children live with their mother at Miller near Liverpool. His ex-wife has a new partner who has lived with her for the past two years. The partner has a reasonable relationship with the two girls. Mr Wilking is not aware of whether or not he is working. Mr Wilking receives an allowance from Centrelink in respect of Joanne, of whom he has custody, which he gives to her every week. The children were brought up to speak both Cambodian and English. They have not visited Cambodia and his wife, Has Vong, has not met them yet, nor has she spoken to them on the phone or corresponded with them. He sees his children four or five times a week and he has provided Joanne with a mobile phone so that he can keep in touch with her by calling her and sending her SMS messages.

28. Mr Wilking said his father is now 75 and has recently had an eye operation to remove a cataract, and also suffers from high blood pressure and angina. His mother is aged 72 and suffers from a chronic bone disorder and ankylosis spondylitis. She recently suffered major complications following surgery to replace her hip joint. She dislocated the new prosthetic hip and on 11 November 2002 had to go back into hospital for further treatment. On 14 December 2002, she had further surgery and now has a metal right hip. She has been advised that it will be six to eight weeks before she is sufficiently recovered to be able to walk. His father is currently having difficulty looking after her at home. Mr Wilking phones them everyday and visits them every Saturday and Sunday with his children.

Has Vong (the Visa Applicant)

29. Ms Has said her husband, Mr Wilking sent her the completed migration application form for her to sign. He placed stickers at various places on the form which showed her where her signature was required, and she recalls signing the form. She remembers that there was a declaration at the end of the form to the effect that her answers were complete and up to date and she remembers reading the form and the declaration before she signed. However, she pointed out that she does not read English very well. She said her husband had previously phoned her to check on some information before inserting answers in the form. She told him that she had not made any previous applications to travel to Australia.

30. Ms Has said she only learned of the 1994 applications in which she had been included when, after the interview at the Australian Embassy in Phnom Penh on 5 June 2002, she asked her mother about these applications having been challenged about them at the interview. In the presence of her sister, Has Lak Khena and her husband, her mother told her that she had bribed another person to include her in his 1994 applications. Ms Has could not remember how much money her mother said she had paid, but thought it was may be US$1,000 or US$2,000. She said she was very angry with her mother. At the time of the 1994 applications, Ms Has was aged 19 and in the second year of her university studies. She wanted to finish her degree in literature and had no thought of coming to Australia at that time. She only decided that she wanted to come to Australia after she was introduced to her husband by her sister, even though her sister had come to Australia in about 1996 and they had subsequently kept in contact. She never made any enquiries about migrating to Australia before meeting Mr Wilking.

31. Ms Has said she knows Has Lak Khena's friend, Has Srey Pov Khanha. Ms Has met her sister's friend when she came to their house in Phomn Penh to her sister's engagement party before her sister left for Australia. Her mother was also present at that party. There were a lot of other guests and Ms Has does not know whether her mother met her sister's friend. Ms Has said she has not seen Has Srey Pov Khanha since then. She did not see her when Mr Wilking was returning to Australia. Ms Has does not know Has Borey.

32. Ms Has explained that she and her sister, Has Lak Khena had disowned their other three siblings after a quarrel involving the siblings demanding her sister's share in the family property. After the quarrel, Ms Has stopped talking to the three siblings and has not spoken to any of them since. Neither she nor her sister, Has Lak Khena, nor their mother have had any contact with the three siblings since the quarrel. Ms Has said Mr Wilking accidentally met her sister, Has Rotmony at her workplace. Ms Has said she was not there at the time and did not know how the meeting happened. Mr Wilking subsequently sent some correspondence for her care of Has Rotmony. Has Rotmony's son, aged 13, brought a fax and a few letters which Mr Wilking had sent to Ms Has care of her sister. The son took the correspondence to Ms Has' address in Phomn Penh. However, at the time, she was working in Kampong Cham. Ms Has subsequently asked her husband not to send any other correspondence via her sister, Has Rotmony. Ms Has did not speak to her sister in the course of these arrangements for her correspondence.

33. Ms Has said she did not include her three siblings' names in the application form because of the quarrel. She discussed this with her sister, Has Lak Khena, before lodging the application. Ms Has denied that her sister had suggested to her that by just including one sibling in the application, who was in Australia, this would improve Ms Has' chances of having her visa granted. Ms Has said her not naming her three other siblings in the application form was not for this reason.

34. Ms Has was asked about the interview at the Australian Embassy on 5 June 2002. She recalled that she was told that she must tell the truth, but denied that when she was asked about her family composition she was told to include parents and siblings "dead, alive or missing". She said the words "dead, alive or missing" were not communicated to her by the interpreter. Later, when she was pressed about her siblings, she told the interviewer about the quarrel and confirmed the existence of the three siblings. Ms Has said she was scared at the time and worried because the interviewer was not polite. Also, she did not then understand how the law worked.

35. Ms Has is working as project officer for the Reproductive Health Association of Cambodia in Kampong Cham. She said she misses her husband very much and wants to be with him in Sydney. She has not yet had any contact with her husband's two daughters.

Has Lak Khena

36. Ms Has said she has known Has Srey Pov Khanha since living in Cambodia. They are close like family members although Has Srey Pov Khanha is older. Has Srey Pov Khanha migrated to Australia in about 1989. Ms Has arrived in 1996. In the interim, they kept in touch by telephone. Has Srey Pov Khanha introduced Ms Has to her husband who sponsored her migration to Australia. Ms Has does not know Has Srey Pov Khanha's family in Cambodia - they never went to each other's houses - they met elsewhere and went out together. Ms Has does not know her friend's brother Has Borey. Has Srey Pov Khanha has not mentioned her brother to Ms Has.

37. Ms Has said Has Srey Pov Khanha did not attend Mr Wilking's and her sister's wedding in Phnom Penh even though they travelled to Phnom Penh on the same plane. At the airport, they were met by their separate families and went to their separate homes. It was just coincidence that they needed to go to Cambodia at the same time.

38. Ms Has only learned that her sister, Has Vong, had been included in 1994 migration applications by their mother when their mother told them of this after her sister's interview at the Australian Embassy in Phnom Penh on 5 June 2001. She and her sister and Mr Wilking were present. Ms Has said the date of birth attributed to her sister in the applications is not her sister's true date of birth which is 1975. Their mother said that she asked someone to adopt Has Vong for the purpose of the applications and promised to pay her airfares and other expenses. Her mother never consulted Has Vong. Has Vong was away at university and not living at home at the time and could not easily be contacted by phone.

39. Has Lak Khena said she and her sister, Has Vong, disowned their three other siblings - Has Rotmony, Has Raksmey and Has Chanrithy - after a quarrel following the three asking Has Lak Khena to give them her share in the family home when she migrated to Australia in 1996. Has Lak Khena was referred to her Statutory Declaration dated 16 July 2002. She said the reason for leaving her three siblings out of her family composition is that she never wants to sponsor them if they want to come to Australia. She does not consider them to be her family any more. She has disowned them, has nothing to do with them and they do not want to know her. None of the three came to Has Vong's wedding and were not invited. Has Lak Khena said she is not aware of her sister, Has Vong having had any contact with Has Rotmony.

Submissions

Respondent

40. Ms Hanstein, for the Respondent, submitted that Ms Has is not of good character because she is not a truthful person. She did not include her three siblings in the visa application form, nor when asked about her siblings at the interview did she mention them, and only admitted to the three additional siblings when she was pressed about this. Ms Hanstein noted there was a discrepancy in the evidence of Mr Wilking and Ms Has over whether Ms Has was on speaking terms with one of the three siblings whom she said she had disowned, Has Rotmony. Mr Wilking said they had spoken briefly in relation to Has Rotmony receiving correspondence for her sister, but Ms Has denied this. Ms Hanstein said that although it was unclear what benefit might derive from not including the three siblings in her application, her stated reason for not doing so was not credible given the declaration which she signed in the application form and the warning which she was given at the interview.

41. With regard to the 1994 applications in which Ms Has was included, Ms Hanstein conceded that there is no direct evidence of Ms Has' involvement in these applications, but noted the connection between Ms Has' sister, Has Lak Khena and her friend, Has Srey Pov Khanha who is related to Has Borey, who was the principal applicant in the applications.

42. With regard to the exercise of the Minister's discretion under s 501(1), Ms Hanstein said that false and misleading statements of the kind made by Ms Has were regarded as serious. She noted that Ms Has has not been remorseful and contended that there is some likelihood of repetition. She said the refusal of a visa in such a case would have an important deterrent effect because of the prevalence of fraud and deception in Cambodia including in relation to visa applications. It is important to send a message to potential visa applicants that such behaviour is unacceptable.

43. Ms Hanstein submitted that the expectations of the Australian community would be that Ms Has should not be granted a visa. There are no children of the relations although Mr Wilking has two children by his previous marriage. However, since he has said he will remain in Australia, their interests are not significant in this particular case. With regard to other considerations, Ms Hanstein submitted that both Mr Wilking and Ms Has should have realised there could be a problem in relation to her immigration status, but both gave evidence that they had not investigated this prior to their marriage. She noted that Mr Wilking had assisted in the completion of his wife's spouse visa application form and was aware that she had three siblings who were not listed on the form. Ms Hanstein conceded that there would be hardship to Mr Wilking if a visa were not granted to his wife, but said this hardship was outweighed by the primary considerations.

Applicant

44. Mr Wilking said that neither he nor his wife had ever been involved in any immigration malpractice. He had no reason to think that there would be a problem with his wife's visa application and his wife was overwhelmed by the interview at the Australian Embassy in Phnom Penh in June 2002. His wife is an honest person and did not intend to mislead. She did not include her three siblings in the visa application because she and her sister had disowned them and taken them out of the family composition after the quarrel. In Cambodia, when members of a family are disowned, this is a significant matter and, in the case of Ms Has and her sister, they removed the three siblings from their family composition because they did not want to sponsor any possible migration by them in the future. With regard to the 1994 visa applications in which his wife was included, Mr Wilking said he was present when his wife's mother told her about what she had done. His wife's angry reaction was not mere show.

45. Mr Wilking said he finds it very hard to function without his wife and it would be very hard for him if she is unable to come to Australia. He would be unable to live in Cambodia because of his health problems and need for ongoing medication. They hope to start a family if she is able to come to Australia and she has promised to be involved in caring for his two children. He believes she would be a very caring stepmother.

Application of the Law and Findings

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

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

In 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 (Goldie 1999 FCA 1277).

47. 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, Ms Has 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.

48. 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)).

49. At this stage, it is appropriate for the Tribunal to make some findings. Based on Ms Has' evidence and that of Mr Wilking and Has Lak Khena, the Tribunal finds that Ms Has had no knowledge of the 1994 visa applications in which she had been included until she was challenged about these at the interview at the Australian High Commission on 5 June 2002. The Tribunal finds that Ms Has' inclusion in these migration applications was instituted by Ms Has' mother, without Ms Has' knowledge. Ms Has was not living with her mother in Phnom Penh at that time because she was in her second year of her university studies and was living away from home.

50. The Tribunal finds that the only adverse evidence against Ms Has is in relation to her not including three of her siblings in her spouse visa application and her not immediately acknowledging these siblings when asked about them during the course of her interview at the Australian Embassy. The Tribunal accepts her explanation that she and her sister, Has Lak Khena had disowned their three other siblings following a family quarrel in 1996 when the three other siblings demanded that Has Lak Khena should transfer her share in the family property to them since she was about to migrate to Australia. The Tribunal accepts that disowning members of one's family may be considered a more significant matter in Cambodian culture.

51. Ms Has did not invite any of her siblings to her marriage to Mr Wilking and her evidence is that she has not spoken to any of them since 1996. However, Mr Wilking's evidence suggests that there has been at least indirect contact with Has Rotmony in relation to Has Rotmony's receiving mail for her sister, but Ms Has denies that they have actually spoken. Both Ms Has and Has Lak Khena gave evidence that their not recognising their three other siblings was an indication that they would not be prepared to sponsor those siblings' migration to Australia.

52. Having heard Ms Has' evidence and that of her sister, Has Lak Khena, and Mr Wilking about this matter, the Tribunal finds that Ms Has had no intention to mislead or deceive by not including the three siblings in her migration application and not acknowledging them in the course of the interview at the Australian Embassy. There was no apparent benefit to Ms Has from not acknowledging her three siblings and the Tribunal considers that she may not have understood the importance of an inclusive statement in relation to all family members in making her application. The Tribunal notes that when challenged about the three siblings during the course of her interview, she acknowledged them but said "they are separated from me".

53. There is no other evidence as to bad character. The Tribunal notes the test as to good character, formulated by the Full Federal Court in Goldie, which emphasises that the character test is concerned with "whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry".. In the Tribunal's view, there is no evidence of any substance to establish that Ms Has' character is so deficient as to be for the public good to refuse her entry. Indeed, the evidence of Mr Wilking is quite to the contrary. The Tribunal therefore determines that Ms Has does not fail the character test by reason of her past and present general conduct and, pursuant to s 501(6), passes the character test.

54. For the sake of completeness, the Tribunal notes that the evidence supports the following additional findings. First, the Tribunal finds, on the basis of the written reports of Dr S K Law, Consultant Psychiatrist, who has been treating Mr Wilking on a regular basis for some time, that Mr Wilking suffers from "a clinically significant degree of chronic anxiety disorder and adjustment disorder with depressed mood" for which he takes prescribed medication. Mr Wilking has also supplied medical certificates from his general practitioner, Dr Khoa van Nguyen. In particular, Dr Nguyen issued a certificate, dated 31 July 2002, certifying that Mr Wilking has been suffering from "Epigastric pain, with abnormal liver function tests and hyper lipidemia". The Tribunal accepts Mr Wilking's evidence as to his ill health while he was in Cambodia, the difficulty of sourcing some of his medication there and his decision that he would be unable to live in Cambodia because of his health. The Tribunal also assumes that his responsibilities towards his two children, who are aged seven and 14, and to whom he is clearly very attached, and towards his parents, who are elderly and in his mother's case in poor health, would prevent this.

55. The Tribunal finds that Mr Wilking is currently in receipt of a disability support pension but works at least 12 hours a week as a volunteer at Cabramatta Community Centre. The Executive Officer of the Centre, Jan Collie, has provided a number of references attesting to the valuable work which Mr Wilking performs. The overall impression gained by the Tribunal is that Mr Wilking has strong ties with his family and the community in which he works. His evidence suggests that he is devoted to his wife and misses her greatly and her letters suggest that his love is reciprocated. The Tribunal finds that if Ms Has' application for a spouse visa is refused, this is likely to cause significant hardship to Mr Wilking and to have a deleterious effect on his medical condition.

56. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Has Vong passes the character test pursuant to s 501(6) of the Act.

I certify that the preceding 56 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

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

Associate

Date/s of Hearing 22 and 23 January 2003

Date of Decision 7 February 2003

Representative for the Applicant Self represented

Representative for the Respondent Ms S Hanstein, Solicitor