Khem and Minister for Immigration and Citizenship [2009] AATA 40 (21 January 2009)

Last Updated: 21 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 40

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5276

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LENG KHEM

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr Egon Fice, Member

Date 21 January 2009

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) Egon Fice
Member

MIGRATION – cancellation of permanent residency visa – marriage to Australian citizen – failure to pass character test – substantial criminal record – sexual offences against child – false and misleading statements on visa application – past and present general conduct – notice of intended marriage – false sworn evidence – protection of Australian community – expectation of Australian community – best interests of child – paternity of child disputed – fear of physical harm if returned to Cambodia

Marriage Act 1961

Migration Act 1958 s 499, s 501(2), (6), (6)(c)(ii), (7)

Ministerial Direction No 21

Sex Offender Registration Act 2004 (Vic)
Re Blaze Glusheski and Minister for Immigration and Multicultural Affairs [2000} AATA 717

R v Hillsley [1992] FCA 39; (1992) 105 ALR 560

REASONS FOR DECISION

21 January 2009

Mr Egon Fice, Member

1. Mr Leng Khem is a Cambodian citizen who first entered Australia on 25 January 2002 on a Tourist Visa. His application for that visa indicated that he planned to stay in Australia between 25 January 2002 and 29 January 2002. Notwithstanding that, Mr Khem married Ms Thyly Thai, an Australian citizen, on 7 February 2002. On 8 February 2002 Mr Khem lodged an application for a permanent Partner (Residence) Visa. On 29 October 2004 Mr Khem was granted a Partner (Residence) (Class BS) Subclass 801 (Spouse) Visa (Permanent Residency Visa). Mr Khem’s Permanent Residency Visa was valid for a period of five years from the date it was granted.
2. On 3 December 2007 Mr Khem was convicted, in the County Court of Victoria, of three sexual offences involving a child under the age of 16 years. He was sentenced to a total period of three and a half years imprisonment. At that time, Mr Khem already had a conviction on a drink driving charge.
3. On 11 January 2008 an officer from the Department of Immigration and Citizenship (the Department) notified Mr Khem in writing that consideration was being given to whether his Permanent Residency Visa should be cancelled under s 501(2) of the Migration Act 1958 (the Act). He was invited to respond regarding whether he satisfied the character test under s 501(6)(a) of the Act. Mr Khem was also advised that if his visa was cancelled, he would become an unlawful non-citizen and, when released from prison, would be required to be detained and removed from Australia.
4. The Department sent Mr Khem a letter on 11 June 2008 indicating that further information had come to light since its letter of 11 January 2008 and that consideration would be given to that information prior to making a decision regarding Mr Khem’s visa. Mr Khem engaged the services of a Victoria Legal Aid solicitor who then responded on behalf of Mr Khem. On 13 August 2008 an officer of the Department notified Mr Khem that there was yet further information which had come to light and that information would be taken into account in making a decision about his visa. A solicitor from Victoria Legal Aid responded to that information on 1 September 2008.
5. On 19 September 2008 a delegate of the Minister for Immigration and Citizenship (the Minister) notified Mr Khem that his Permanent Residency Visa was cancelled. The notification was by facsimile and the delegate, realising that the notification provisions of s 501G of the Act were not satisfied, sent further notification to Victoria Legal Aid on 25 September 2008. However, there were some problems with Victoria Legal Aid continuing to act and Mr Khem notified the Department on 15 October 2008 that he had only received formal notification of the cancellation of his visa on 10 October 2008. Mr Khem said he was no longer represented by Victoria Legal Aid. Given the difficulties of serving Mr Khem with notice of the cancellation of his visa, the delegate decided to send a fresh notice informing Mr Khem of the cancellation of his visa. The notice was dated 23 October 2008. It is this notice which is the subject of the application for review in this case.
6. Mr Khem conceded that he did not pass the character test because he had a substantial criminal record (as that term is defined in s 501(7) of the Act). Therefore, the Minister’s discretion to cancel Mr Khem’s Permanent Residency Visa was enlivened (s 501(2)). The only issue before me is whether, having regard to all the relevant considerations in Ministerial Direction No 21, dated 23 August 2001 (the Ministerial Direction), the preferable decision is to cancel Mr Khem’s Permanent Residency Visa.

FACTUAL BACKGROUND

7. The factual background set out below has been taken from documents put into evidence by both parties. It is not controversial.
8. Mr Khem was born in Cambodia on 10 November 1979. He was 23 years old when he came to Australia in 2002. He came to Australia on a Tourist Visa indicating that he planned to stay some five days. In answer to the question on his application for a Tourist Visa whether he had any relatives, friends or contacts in Australia, Mr Khem answered No. In answer to the question why he wanted to visit Australia, Mr Khem said Having holidays with my brother and see the beauty of Australia before proceding [sic] home. Under the section requiring Mr Khem to set out the details of his employer/business, Mr Khem said the position he held in Cambodia was Assistant of Bank Manager.
9. A letter of support for Mr Khem’s Tourist Visa was provided by Mr Colin G Scott, Acting Country Director for World Vision International. In his letter of support, Mr Scott said that Mr Khem had recently completed a banking course in Bangkok and was currently visiting his brother in East Timor. He said that Mr Khem’s brother was travelling to Cambodia via Darwin on 25 January 2002 and that Mr Khem wished to travel with him on his return to Cambodia.
10. A Notice of Intended Marriage was apparently signed by both Mr Khem and his intended bride, Ms Thai. Both signatures purport to have been witnessed by Duc-Hung-Bui, a Justice of the Peace. Mr Khem’s signature was witnessed on 27 January 2002 and Ms Thai’s signature on 2 January 2002. Mr Khem’s usual occupation listed on the Notice of Intended Marriage is stated to be Assistant Manager and Ms Thai’s usual occupation as self-employed. The usual place of residence of both parties was given as 36 Huntingdale Avenue, Lansvale, New South Wales 2166.
11. It appears that Mr Khem and Ms Thai were married on 7 February 2002. Their Marriage Certificate indicates that their marriage was solemnised by Mr Brian Stanley Wood.
12. On the day after Mr Khem’s wedding, he lodged with the Department an application for a permanent Partner (Residence) Visa. After Mr Khem and Ms Thai were interviewed by a Department officer on 26 October 2004, Mr Khem was notified on 29 October 2004 that his application for a Permanent Residency Visa was approved. At that interview, Ms Thai produced a medical certificate which stated that she was pregnant (27 weeks). On 5 April 2004 Ms Thai purportedly made a Statutory Declaration in support of Mr Khem’s application for a Permanent Resident Visa. That declaration was also witnessed by Duc-Hung-Bui.
13. While awaiting the outcome of a decision on his Permanent Residency Visa, Mr Khem was granted a Partner Temporary Visa (Sub-class 820). Mr Khem was notified of the grant of the Temporary Visa on 8 May 2003. On 29 October 2004 Mr Khem was granted a Permanent Residency Visa.
14. In November or December 2004, Ms Thai left Mr Khem to visit her family in Melbourne. She did not return. Mr Khem has not seen her since.
15. Mr Khem left Sydney in May 2005 and came to Melbourne where he found employment.
16. On 16 June 2006 Mr Khem committed the offences of an indecent act with a child under 16; one count of sexual penetration of a child under 16; and one count of attempted sexual penetration of a child under 16. The child in question was 14 year old girl. Mr Khem was sentenced on 3 December 2007 to a period of 3 years and 6 months imprisonment. The period of 2 years and 3 months was fixed as the time he should serve before being eligible for parole. Her Honour, Judge Hampel, directed that his record be noted that he was a serious sexual offender and, under the Sex Offenders Registration Act 2004 (Vic) (Sex Offenders Act), he was required to comply with reporting obligations for life.
17. In January 2008 a delegate of the Minister first notified Mr Khem that consideration was being given to the cancellation of his Permanent Residency Visa.
18. Mr Khem was released on parole in December 2008 when he was transferred from Margoneet Prison to the Immigration Detention Facility at Maribyrnong.

LEGISLATIVE SCHEME

19. Section 501(2) of the Act provides:

(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply

20. Section 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record. That expression is defined in s 501(7) of the Act, which provides that, for the purposes of the character test, if amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more, the person is regarded as having a substantial criminal record.
21. Section 501(6)(c)(ii) provides:

(6) For the purposes of this section, a person does not pass the character test if:
...
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or ...
Otherwise, the person passes the character test.

22. Under s 499 of the Act the Minister may give written directions to a person or body having functions or powers under the Act regarding directions which are about the performance of those functions or the exercise of those powers. This Tribunal is a body having functions or powers under the Act. The Tribunal is required to comply with any such directions made by the Minister. The current direction is Direction – Visa Refusal and Cancellation under section 501 No 21 (the Ministerial Direction).
23. The Ministerial Direction states that the purpose of refusing or cancelling a visa under s 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.
24. The Ministerial Direction sets out a number of matters that decision-makers should consider when determining whether there is a failure to pass the character test. Among those considerations is the following:

...
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement; ...

25. Broadly, the Ministerial Direction states that when exercising the discretion under s 501 of the Act, the decision-maker must take into account a wide range of factors including the expectations of the Australian community; the nature of the crimes committed; the non-citizen’s links to Australia; and any relevant international law obligations.
26. Although the Ministerial Direction sets out three primary considerations, which are regarded as most important, there are other considerations which should also be taken into account, but given less individual weight, in balancing all of the relevant considerations. The primary considerations when making a decision to cancel a visa are:
    • (a) the protection of the Australian community, and members of the community;
    • (b) the expectations of the Australian community; and
    • (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

THE CHARACTER TEST

27. Although Mr Khem conceded he did not pass the character test because of his criminal record, and that concession enlivened the Minister’s power to cancel his visa, there is one other aspect of the character test which needs to be mentioned. That is because when examining the expectations of the Australian community, the Minister’s Direction states that a visa cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should be removed from Australia. Section 501(6)(c)(ii) of the Act provides that having regard to the person’s past and present general conduct, it may be determined that the person is not of good character.
28. The events which raised the Minister’s concern regarding Mr Khem’s general conduct arose out of Mr Khem’s initial application for a Tourist Visa, ostensibly for the purpose of holidaying in Australia, which then led to him marrying Ms Thai very shortly after his arrival.
29. Mr Khem’s evidence was that he met Ms Thai, an Australian citizen, in Cambodia in November 2001. Mr Khem said that they spent most of the time together between November and December when Ms Thai returned to Australia. That evidence was different to what Mr Khem said in a statutory declaration made on 19 June 2008. In that statutory declaration, Mr Khem said that he met his wife when she came to visit Cambodia on a holiday. He said Ms Thai visited Cambodia a few times and met him on every occasion she was there. He also said that when Ms Thai returned to Australia, they exchanged letters, but mainly spoke on the telephone, sometimes every day. In his evidence at the hearing, Mr Khem said that his relationship with Ms Thai before she left Cambodia in December 2001 was that of close friends.
30. Mr Khem said that he decided to visit his brother who was working in East Timor with World Vision. He arrived in East Timor on 8 January 2002 and stayed with his brother. According to Mr Khem, his brother suggested that they holiday in Australia on his way back to Cambodia. In fact, Mr Khem said in evidence that his airline ticket from East Timor was via Darwin, with a stopover of five days, then to Singapore and on to Cambodia. In his oral evidence-in-chief, Mr Khem said that he had not had any discussions with Ms Thai when they were both in Cambodia in November and December 2001 about a future together or any possible marriage. In fact he said that before spending time with his bother in East Timor, he had not contemplated returning to Cambodia via Australia. He also said that when he came to Australia on a Tourist Visa, he had no intention of visiting Ms Thai who was in Sydney. This seems to be at odds with his written statement of 12 January 2009, where he said that although he had discussed with Ms Thai the possibility that they might marry at some time in the future, he did not come to Australia with the intention of marrying her at that time.
31. In his oral evidence, Mr Khem said that when he arrived in Darwin on 25 January 2002, he received a telephone call from Ms Thai in Sydney, inviting him to come to Sydney for a holiday. Mr Khem then re-arranged his flight schedule, catching a flight to Sydney on the same day. Mr Khem said that when he met Ms Thai in Sydney, within two days, they had decided to marry. However, not only is this evidence unlikely to be true from the perspective of common sense and logic, there is objective evidence which points to the fact that the marriage was pre-planned.
32. Under the Marriage Act 1961, persons intending to marry are required to file a Notice of Intended Marriage with a marriage celebrant, at least one month prior to the marriage taking place. Mr Khem and Ms Thai were married on 7 February 2002. Ms Thai signed a Notice of Intended Marriage on 2 January 2002 some three weeks prior to Mr Khem arriving in Darwin. The Marriage Act provides that where one signature of a party to an intended marriage cannot conveniently be obtained at the time that is desired to give notice, the notice may be signed by the other party and given to the proposed marriage celebrant. The party who has not signed the notice must sign it in the presence of the celebrant before the marriage is solemnised. Logically, the purpose of Ms Thai signing and lodging with the marriage celebrant the Notice of Intended Marriage on 2 January 2002 was to permit the marriage to take place shortly after Mr Khem’s arrival in Australia. Again, logically, Ms Thai must have agreed to marry Mr Khem prior to her lodging the Notice of Intended Marriage. That of course was well before Mr Khem first arrived in Australia and before he applied for his Tourist Visa. Mr Khem was not able to explain why Ms Thai would have signed the Notice of Intended Marriage and lodged it with the celebrant some three weeks before his arrival in Australia. Nevertheless, when he was given the form to complete by signing it, he said he simply did not question the purpose of the signature but merely signed it. It is inconceivable that Ms Thai did not explain to him the purpose of signing that document. It follows that if Mr Khem’s account of the events is to be believed, he and Ms Thai had decided within two days (that is between 25 January and 27 January 2002) that they would marry and all of the arrangements had progressed to such a stage that a church wedding had been organised for 7 February 2002.
33. There is one further piece of evidence which contradicts Mr Khem’s account of his reason for coming to Australia on 25 January 2002. In a statutory declaration made on 4 March 2002 in support of his application for permanent residency, he stated that he had met Ms Thai on two occasions in Cambodia, between 1 February 2000 and 20 March 2000 and between 3 November 2001 and 18 December 2001. He said that after the second meeting, he proposed marriage to Ms Thai and she accepted. It seems to me that the statements set out in that statutory declaration are more likely to be correct as they explain the actions taken by Ms Thai in Australia to enable the marriage to take place by 7 February 2002. Mr Khem’s explanation for making that statutory declaration was that it had been drafted by the migration agent; it was not explained to him as he did not have any English at that time; and that he simply signed the form. Although I accept that he may not have been able to read what was written on the statutory declaration, I cannot accept that its contents were not explained to him in his own language.
34. On 8 February 2002, the day after his wedding, Mr Khem lodged his application for a Permanent Residency Visa.
35. I am satisfied, from the objective evidence, that Mr Khem’s visit to Australia on 25 January 2002 was pre-planned for the purpose of his marriage to Ms Thai. It was not for the purposes stated in Mr Khem’s Tourist Visa application. Accordingly, I find that Mr Khem made a number of false and misleading statements in his visa application. Furthermore, the sworn evidence which he gave before me at the hearing was also false.

PROTECTION OF THE AUSTRALIAN COMMUNITY

36. As is stated in the Ministerial Direction, 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. I am required to be particularly mindful of the need to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. In assessing the level of risk to the community should Mr Khem be permitted to stay in Australia, I am required to consider:
    • (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).

THE SERIOUSNESS AND NATURE OF THE CONDUCT

37. Offences which are considered by the Government to be very serious include sexual assaults, which are particularly repugnant to the Australian community; especially sexual assaults involving children, regardless of whether there was overt violence or a threat of violence. I should take into account the sentence imposed for a crime as an indication of the seriousness of the offender’s conduct against the community. I must also have regard to the repugnance of the crime, and in particular, crimes against children which are regarded as especially repugnant to the whole community.
38. The crimes which Mr Khem committed were against a 14 year old girl, the daughter of a woman he knew. They occurred in the victim’s house after he had been invited as a guest of the mother. The mother and some other adults, including Mr Khem, consumed alcohol and some marijuana in the course of an afternoon and the evening. Affected by alcohol, Mr Khem went to sleep on a couch. The mother and the adults left the house at about 11.00pm to go to a club. At some time during the night, he awoke, and went into the girl’s bedroom where he committed the offences. He was discovered in the course of committing the offences and despite that, denied wrongdoing. The girl’s mother was contacted and there was some discussion between Mr Khem and her when she returned to the house. Mr Khem went home but the following morning, the police contacted him about the offences. Mr Khem fled to Sydney where he stayed for a week. However, he came back of his own volition and surrendered to the police. Mr Khem was subsequently charged with rape, attempted rape, sexual penetration of a child under 16 years and attempted sexual penetration of a child under 16.
39. At first, Mr Khem indicated he intended to plead “not guilty” to the charges. He said that he thought the girl was at least 18 years of age because she was a large girl. He also said that he was affected by alcohol and the marijuana which had been taken in some food. However, as Hampel J said at the sentence hearing:

... You were at the house on 16 June last year when the complainant, [the victim] came home from school. It must have been obvious to you that she was not only a schoolgirl but a child.

40. Her Honour Hampel J said that the evidence did not allow her to find whether Mr Khem was attracted to pubescent or post-pubescent girls generally or whether he was attracted to the child in question in particular. However, she said that the evidence allowed her to find:

... that this opportunistic behaviour carried with it an acknowledgement that you used this child to gratify your own sexual urges. This is made worse by the fact that she was a child; that it occurred in her home where you had been invited as a guest by her mother, and in her bed, in circumstances where you had snuck into her room whilst she and everybody else in the house was sleeping; and that you attribute this behaviour to the effects of the alcohol that you had consumed. ...
It is clear that such behaviour as you engaged in on this night deserves to be clearly understood for what it is, that it is repugnant, selfish and lacking in self-restraint, and that it was embarked upon without any regard for the rights of [the victim]. So understood, this behaviour has to be roundly condemned.

41. Although Mr Khem initially intended to defend the charges, after a change of solicitors, and immediately before trial, Mr Khem agreed to plead guilty to one count of an indecent act with a child under 16; one count of sexual penetration of a child under 16, that being a count of digital penetration; and one count of attempted sexual penetration of a child under 16, that attempt being one of penile penetration. The rape charges were dropped. Her Honour took into account the guilty pleas in sentencing Mr Khem and accepted that by pleading guilty, he showed genuine remorse. Hampel J also referred to the victim’s impact statements which were read aloud in the course of the plea hearing. It is clear from what was said by Her Honour that the victim was extremely traumatised by the crimes committed by Mr Khem. She found it hard to go back to school and her grades and attendances dropped significantly. She was too ashamed to tell people and to talk about it. She said:

My life would be so much better if I didn’t have to go through what he did to me

Hampel J sentenced Mr Khem on the three counts to a period of three years and six months imprisonment. She fixed a non-parole period of two years and three months. Although Mr Khem appealed against the length of the sentence to the Court of Appeal, his appeal was dismissed.

42. Hampel J also directed that Mr Khem’s record be noted that he was a serious sexual offender and that under the Sex Offenders Registration Act 2004 (Vic), because two of the offences were class one offences, he was required to report for life.
43. For the sake of completion, I should record that Mr Khem had one previous criminal conviction, and that was for driving while in excess of the permissible blood alcohol limit. This offence occurred in Sydney in May 2005 for which his driver’s licence was disqualified for nine months and he was fined $1000.00.
44. The Adult Parole Board directed that Mr Khem be released on parole on 22 December 2008. It is a condition of the Parole Order that Mr Khem have no contact, supervised or unsupervised, with children under 16 years or young persons under 18 years without the written permission of the Community Corrections Officer.
45. The evidence before me clearly points to Mr Khem having committed very serious offences and ones which are particularly repugnant to the Australian community.

LIKELIHOOD THAT CONDUCT MAY BE REPEATED

46. In the course of the sentencing hearing, Hampel J accepted that Mr Khem appreciated the seriousness of his offences and that he was remorseful. She then said:

Whilst I consider all of that points to there being good prospects that you have learnt your lesson and that you will not re-offend, I think it puts it too high to say you present no ongoing danger to the community.

47. The fact that Mr Khem is now recorded as a serious sexual offender under the Sex Offender Registration Act which places serious restrictions on Mr Khem’s contact with females under the age of 18 years, in itself, points to the fact that there remains an ever-present risk of re-offending. Although Hampel J said that the matters she considered indicated that there were good prospects for Mr Khem’s rehabilitation, she added that he had had little opportunity to put his words and desires into action. For that reason, she was mindful that the sentence she imposed should encourage him not to commit any further offences.
48. Mr Khem completed a sex offender program while in prison. Ms Rebecca Biggs, a psychologist involved in the treatment program, provided a report on 26 September 2008. She said that Mr Khem was able to identify a number of cognitive distortions that led to his offending, including his belief that the victim liked him, that she smiled and touched him and therefore was consenting to sex, and that he did not think he was hurting anyone. She said that Mr Khem identified that blaming the victim was a significant cognitive distortion that contributed to his offending behaviours. She recommended that Mr Khem not have any unsupervised access to females under the age of 18 years as she considered that to be one of a number of high risk factors.
49. It is difficult, at this stage, to assess the risk of Mr Khem repeating the type of conduct which saw him imprisoned. As Hampel J said in her sentencing remarks, Mr Khem has had little opportunity to put his words and desires into action. This is despite the fact that Mr Khem said in his evidence that he appreciated the impact of his offending on the victim and that he was determined not to re-offend in the future. My concern is that in his evidence, when discussing the attempts to re-locate his wife after she left Sydney and came to live in Melbourne, he said that the Cambodian community had turned its back on me. Mr Khem has no family or relatives in Australia in which he can confide. While I have been provided with statements from Mr Sim Leang Hor and Mr David Chan, they are persons with whom he has worked and who have offered to assist him with employment should he stay in Australia. Mr Chan is perhaps a closer friend, having known Mr Khem for what he described as many years and been good friends in Cambodia. However, while not doubting the support that those two persons would provide to Mr Khem were he to remain in Australia, there is no indication that they would be in a position to provide him with emotional support, particularly as his wife has stated that she intends to seek a divorce and claims that the child, to which she gave birth in January 2005, is not his. One of the high risk factors identified by Ms Biggs was Mr Khem isolating himself and bottling up his emotions. Another high risk factor was Mr Khem not communicating with his supports. In my view, the lack of close family members in Australia, coupled with the fact that Mr Khem is likely to experience ongoing emotional stress due to Ms Thai not wanting anything more to do with him and denying that the child is his, indicates that there probably remains a significant level of risk of re-offending. I am satisfied that the risk is greater than minimal.

GENERAL DETERRENCE

50. The concept of general deterrence is that there should be a penalty sufficient to deter other people from committing the same or a similar offence. In other words, I am required to consider whether, if Mr Khem’s Permanent Residency Visa were cancelled, it would deter others from committing similar offences. I have no evidence before me to indicate that in this case, the cancellation of Mr Khem’s Permanent Residency Visa would deter others from similar conduct. In fact, Mr Brown, who appeared on behalf of the Minister, submitted that the cancellation of Mr Khem’s visa was unlikely to have a deterrent effect on other non-citizens. In the absence of any evidence, I agree with that submission.
51. In summary, after taking into account the various factors which I am required to consider in determining whether the protection of the Australian community compels the removal of Mr Khem from Australia, it is my view that it does. The offences committed by Mr Khem are very serious and have had a devastating effect on the life of the victim. Although it cannot be said that the likelihood of the conduct being repeated is high, it is nevertheless significant. This is evidenced by the fact that the offences require Mr Khem to be registered under the Sex Offenders Registration Act and that places reporting obligations on Mr Khem for life. Further, the conditions of Mr Khem’s parole make it clear that he is not to have unsupervised contact with females under the age of 18 years. These conditions, clearly designed to deter a repeat of conduct, are onerous because there is a significant risk of repeat offending.

EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

52. As stated in the Ministerial Direction, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has been convicted of offences within Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation and removal of the non-citizen from Australia may be appropriate simply because of the nature of the character concerns, or that the offences committed are such that the Australian community would expect that person to be removed from Australia. Regarding the expectations of the Australian community, Gallop J said in R v Hillsley [1992] FCA 39; (1992) 105 ALR 560 at 566:

There is no difficulty in the case of sexual offences against young people in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences against young people, the voice of the community, through the legislation enacted by parliament, expresses its abhorrence and it is the courts’ duty to sentence offenders accordingly.

53. Although Mr Khem has been convicted of what can only be described as very serious offences, that, by itself, may not give rise to an expectation that he should be removed from Australia. As Deputy President BJ McMahon said in Re Blaze Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717, there is an expectation in the Australian community that the migration legislation will be administered in a fair and humane manner. That will require taking into account any other matters which may be relevant.
54. A significant factor which should be taken into account is the length of time that the applicant has resided in Australia. The community may well have different expectations where an applicant has lived in Australia for an extended period of time after arriving as a young child, as opposed to where the applicant has only resided in Australia for a relatively short period of time. Mr Khem has resided in Australia for a period of seven years. In fact, prior to being remanded in custody in June 2006, Mr Khem had only resided in Australia for a period of four and a half years. This is not the same as the case where an applicant has arrived as a young child and lived in this country for most of his or her life. Mr Khem only appears to have a basic command of the English language, as was evidenced by the need to have an interpreter present in the course of the hearing. It could not be reasonably said that he is well integrated into the Australian community and therefore he would have considerable difficulty if he were returned to Cambodia. In fact the opposite is true. He is fluent in the Cambodian language having lived there for most of his life and his family and relatives all live there. In fact, he has expressed an intention to return to live in Cambodia at some future time.
55. Another factor which, according to Mr Brown, should be taken into account is the nature of Mr Khem’s character, particularly in light of the false and misleading statements he made in his application for a tourist visa in January 2002. According to Mr Brown, the means by which Mr Khem first gained entry to Australia gives rise to significant concerns about his character. I agree. As I have found above, Mr Khem made false and misleading statements in order to come to Australia so that he could marry Ms Thai. Furthermore, in the course of the hearing, he gave sworn evidence which I have found to be false.
56. In my view, the above matters would, on the balance of probability, coupled with his serious offending, cause the Australian community to expect Mr Khem to be removed from Australia.

BEST INTERESTS OF THE CHILD

57. Mr Khem claims to be the father of a child to whom Ms Thai gave birth in January 2005. Immediately prior to Mr Khem and Ms Thai being interviewed by the Department of Immigration and Multicultural and Indigenous Affairs on 26 October 2004, Ms Thai obtained a medical certificate which stated that she was 27 weeks pregnant. In a statutory declaration made on 5 April 2004 in support of Mr Khem’s Permanent Residency Visa application, Ms Thai stated that she and Mr Khem were expecting to make their first child and that they had been very happy. Following the interview by the Department officer on 29 October 2004, Mr Khem was granted a Permanent Residency Visa. However, despite all the indications given to the officers’ of the Department about Mr Khem and Ms Thai living as husband and wife and having been very happy, Ms Thai left Mr Khem shortly after his Permanent Residency Visa was granted. Although Mr Khem said it was about three months later, that could not possibly be correct because Mr Khem agreed that he had never seen Ms Thai’s child. As she was 27 weeks pregnant in late October 2004, it is more likely that she left Mr Khem in either November or December 2004. Further, after Ms Thai was contacted by an officer of the Department in August 2008, she provided further information by an email dated 11 August 2008. Contrary to what Mr Khem had said about his marriage, she said:

We had alot [sic] of marriage problems, and so I use to go away to Melbourne, to visit my family very often, and then I decided to move down to Melbourne permantly [sic], in late 2004, because I didn’t think our marriage would work. I did tell Leng that I wanted leave for a while.

58. Ms Thai also said I do have a child, but he is NOT Leng’s. It was with a different man, who I am no longer with either.
59. Ms Thai said that since separating, she has not seen nor spoken to Mr Khem. She said she had been looking for him because she wanted to file for divorce, but didn’t know where he was or how to contact him.
60. It is difficult to know which account of the events which took place in late 2004 should be believed. Some questions certainly arise about the nature of the relationship from the very outset and the paternity of the child. Mr Khem claimed the statement about the child’s father is ridiculous. He said that at the Department interview on 26 October 2004, he was asked about his wife’s pregnancy and he has no doubt that Ms Thai was also asked similar questions. If there had been any concern about the identity of the father, Mr Khem suggested that he would certainly not have been granted the Permanent Residency Visa. I have no doubt that is correct. However, it does not resolve the paternity issue. While I also have concerns about what Ms Thai might have said to the Departmental officers at the interview, there is some objective evidence which supports her statement about having a lot of marriage problems.
61. In evidence were a number of bills from Telstra for the period between November 2003 and February 2004. The 2003 bills are addressed to MS T THAI & MR LENG KHEM, Un 5, 12 HILL ST, CABRAMATTA NSW 2166. However, in the Telstra bill issued on 11 February 2004 in respect of the same telephone number which appeared to be in both parties names, the bill is addressed to MRS THYLY THAI, 107 FLOWERDALE RD, LIVERPOOL NSW 2170. Subsequent Telstra invoices are addressed solely to Mrs Thai at the Liverpool address. When asked about this, Mr Khem said he could not provide an explanation. In answers to questions in the course of his interview in October 2004, Mr Khem said he was living at the Flowerdale Road, Liverpool address.
62. There is one other piece of evidence for which there was no sensible explanation. When Mr Khem commenced working in Australia, he was entitled to compulsory superannuation contributions from his employer. Mr Khem was required to nominate a beneficiary for the purposes of his superannuation monies. He nominated a Ms Linda Chan as the 100 percent beneficiary. When Mr Khem was asked why he nominated Ms Chan, he said that she had completed the forms, he being unable to understand the nature of a superannuation fund at that time. He said he understood that a contact person was required for the superannuation fund in the event of an emergency. Ms Chan is Ms Thai’s cousin. Mr Khem said that he did not understand that a beneficiary would be entitled to all of his superannuation money if he died. Asked why he didn’t nominate Ms Thai as the beneficiary, he said he didn’t think of that at the time. He thought he was merely providing a contact name. However, under cross-examination, when asked why he didn’t nominate his wife as the contact point in the event of an emergency, he simply repeated that Ms Chan was a close friend of his wife and that he did not understand the purpose of the nomination at the time. He was unable to explain why he did not nominate his wife as the contact person in that case.
63. While I accept that it is not possible to draw any firm conclusions from the objective evidence regarding the telephone accounts and the nomination of Ms Chan as the sole beneficiary of Mr Khem’s superannuation fund, the explanations given by Mr Khem do not encourage me to accept his evidence. They may well be indicative of the fact that, contrary to his evidence, there were serious marriage problems from the very beginning. The objective evidence certainly adds more weight to Ms Thai’s comments, made in her email to the Department on 11 August 2008.
64. When Ms Thai left Sydney at the end of 2004 to live with her sister in Melbourne, Mr Khem agreed that he had Ms Thai’s mobile telephone number and the address of her sister. Given that Mr Khem was aware that Ms Thai’s baby was due in January 2005, it is reasonable to expect that he might have made some enquiries about the child’s birth. However, Mr Khem did not write to Ms Thai nor contact her by telephone; although, he said he tried to contact her by telephone but the telephone number had been changed. Other than that, he made no further enquiries until he came to Melbourne in May 2005. Although Mr Khem said he was interested in the baby, the evidence certainly does not support that statement. Mr Khem said that when he came to Melbourne in May 2005, he stayed with a friend at Narre Warren South which is only a short distance from Keysborough where Ms Thai’s sister lived. When asked what he did then to contact his wife, he said he simply looked around but couldn’t find her. He said he didn’t seek legal advice regarding any rights that he may have had to contact the child because he didn’t speak English very well and certainly didn’t understand that he had any legal rights. I accept that as a reasonable explanation for not pursuing contact with the child through legal means. However, the evidence does not disclose any other serious attempts to make contact with Ms Thai, either through her family or friends, some of whom certainly Mr Khem had met and knew well. For example, Mr Khem did not contact Ms Chan about Ms Thai’s whereabouts in Melbourne.
65. While Mr Khem was on remand awaiting trial, Ms Thai wrote to him and told him that she wanted a divorce. Although Mr Khem said that he wrote to Ms Thai when he was on remand, he did not receive a reply. He is not aware of Ms Thai’s whereabouts at this time. He has never seen the child nor has he spoken with his wife since she left Sydney at the end of 2004.
66. In the circumstances described by the evidence, it is difficult to come to the conclusion that the best interests of the child would be served by allowing Mr Khem to remain in Australia and to make contact. It may be that he is not the father of the child. Even if he is, I must have regard to the nature of the relationship between the non-citizen and the child and the duration of the relationship including the number and length of any separations. In this case, there is no relationship between the child and Mr Khem. He has never seen nor spoken to the child, who would now be four years old. If at this stage he was introduced to the child, who then became aware that his or her father was a serious sex offender, I would be concerned about the effect that that might have on the child.
67. Taking into account all of the circumstances in this case, even if it were subsequently proved that Mr Khem was the father of the child, I find that Mr Khem remaining in Australia would not be in the child’s best interest.

OTHER CONSIDERATIONS

68. As for the other considerations set out in the Ministerial Direction, the only matter of significance raised by Mr Khem is the fact that if he were to return to Cambodia at this time, his life would be in serious danger. This is because, according to Mr Khem, he was involved in a shooting incident in Phnom Penh in December 2001. Mr Khem raised this matter for the first time in his written statement of 12 January 2009.
69. Mr Khem said that shortly before he left Cambodia, he was working as a part-time police officer in the drug-squad. A nephew of Cambodia’s Prime Minister Hun Sen, a Mr Hun To, was drinking in at a restaurant in Phnom Penh with his bodyguards. Some friends of Mr Khem, including Ms Thai, were there. Mr Hun To was harassing his friends. One of the young women who were there telephoned her husband who then asked Mr Khem to go with him to the restaurant. A confrontation occurred and Mr Khem was shot in the lower left leg by one of the bodyguards of Hun To. Mr Khem said that he was informed that his life would be in danger if he stayed in Cambodia and that was the reason why he left to see his brother in East Timor. He said that although he would like to be able to return to Cambodia and start a business there in the future, he believed it was dangerous for him to return while Hun Sen remained in power. He was of the view that Hun Sen’s nephew, Hun To, remained a threat to him.
70. In support of this claim, Mr Khem produced an extract from China Central Television (CCTV) and Cambodia News regarding the incident. According to CCTV, Hun To was involved in a mid-December gunfight at a Phnom Penh beer garden. The report states that a fight broke out between the table at which Mr Hun To’s friends were drinking and another table, over a woman. The Cambodian news article provides more detail about the aftermath of the shooting. The bodyguards’ of Hun To were found guilty of illegally using a weapon and the destruction of property. They were sentenced to 68 days in gaol. The dispute erupted with an Australian citizen of Cambodian origin, a Mr Thay Thany. There was nothing in either report to suggest that Mr Khem or Ms Thai were present at the beer garden.
71. At the hearing, Mr Khem allowed me to examine his left leg and certainly there is, what appeared to me, to be a bullet wound to his left leg, just above the ankle. There are scars indicating the entry point at the front of the leg and a round scar indicating the exit point at the rear of his leg.
72. There are, nevertheless, some difficulties in verifying that Mr Khem was indeed shot in the course of the incident as reported. As I have already mentioned, his name does not appear at all in the news reports and nowhere is it suggested that any person was wounded in the course of that fracas. There is also a problem with the fact that Mr Khem’s passport would suggest that Mr Khem was in Thailand on 13 December 2001. It is stamped with a departure stamp in Cambodia on 13 December 2001 and an arrival stamp on the same day in Thailand. The passport also contains a visa for Thailand valid from 11 December 2001 to 10 March 2002. His passport indicates that he did not depart Thailand until 5 January 2002, having obtained a visa to enter Indonesia on 3 January 2002. Mr Khem had spent another brief period in Thailand just prior to those dates. In fact he obtained another tourist visa for Thailand which was valid between 13 November 2001 and 12 February 2002. His passport indicates that he departed Cambodia on 27 November 2001 and arrived in Thailand on the same day. He then departed Thailand on 9 December 2001, arriving back in Cambodia on the same date. His passport indicates that the only period in December that Mr Khem was in Cambodia was between 9 December 2001 and 13 December 2001, after which he returned to Thailand. It follows that, if the news reports of the incident are correct, Mr Khem was in Thailand at the time the incident took place. When this was put to Mr Khem under cross-examination, he said he did go back to Cambodia four days after his arrival in Thailand on 13 December 2001. He said that he did not have his passport stamped as he travelled by road and at the boarder crossing, he had a friend who allowed him to cross without stamping the passport. He said that to have done so, would have meant that he would have had to obtain a new visa.
73. Asked why he went to Thailand in December 2001, Mr Khem simply said that he was accompanying a friend of his who was there on business. After the shooting incident, Mr Khem said that he sought treatment at a private clinic rather than a public hospital because he was in fear of his life. He said he could not walk for about two to three weeks after the shooting because his leg was very painful. He said he needed to be carried. That remained the situation for about three weeks. He said he was looked after by friends and he went back across the border into Thailand, catching a taxi to Bangkok. Asked what he did in Bangkok, Mr Khem simply said that he stayed in hotel room on his own.
74. Despite purporting to be in fear of his life if he returned to Cambodia, after visiting his brother in East Timor, Mr Khem agreed to accompany his brother on his return journey to Cambodia from East Timor. Mr Khem claimed in evidence that when he departed East Timor, he had an airline ticket for travel to Darwin, Singapore and then Phnom Penh. That evidence was corroborated by a letter written by Mr Scott in support of Mr Khem’s application for a tourist visa to enter Australia. Mr Scott said that Mr Khem’s brother wished to travel with him on the return to Cambodia. From that evidence, the reasonable inference to be drawn is that Mr Khem was not concerned for his personal safety if he returned to Cambodia in January 2001. Before me, Mr Khem also expressed the desire to return to Cambodia at some future date. It therefore raises serious questions about the claim that he now, some seven years after the shooting incident, holds a genuine fear for his safety upon his return to Cambodia. Therefore, even if I were to accept Mr Khem’s account of the shooting incident in Cambodia, I am not persuaded that there would be a danger to his personal safety were he to return to Cambodia at this time.
75. Even if I am wrong about that, and assuming that the shooting took place as Mr Khem reported, as Mr Brown submitted, that does not give rise to any international obligations on the part of the Australian Government. It is not a matter which falls under any convention to which Australia is a party. It is not a refugee matter but rather, simply a criminal issue which should be dealt with, if necessary, by the authorities in Cambodia. In fact, the Cambodia News report of the incident indicates that the persons involved in the shooting were gaoled. Admittedly, Hun To was not convicted; even though Hun Sen, when informed of the shooting, insisted that police and military officials arrest his nephew. It seems to me to be quite fanciful to suggest that Hun To would hold a grudge against Mr Khem regarding the incident. I therefore find that this factor does not assist Mr Khem’s claim to remain in Australia.

CONCLUSION

76. Having examined the relevant matters I must take into account in exercising the discretion, I am satisfied that each of the primary considerations is against Mr Khem remaining in Australia. Furthermore, I am not satisfied that the only other consideration raised by Mr Khem, that is the concern for his personal safety if he is forced to return to Cambodia, weighs in favour of Mr Khem remaining in Australia. The decision by the Minister’s delegate to cancel Mr Khem’s Permanent Residency Visa dated 23 October 2008 was correct and must be affirmed.
    

I certify that the seventy-six [76] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

Signed: Dianne Eva

Clerk

Date of Hearing 16 January 2009

Date of Decision 21 January 2009

Counsel for the Applicant Mr G Hughan

Solicitor for the Applicant Ms A Dwyer, Refugee & Immigration

Legal Centre

Solicitor for the Respondent Mr D Brown, Australian Government Solicitor