IMMIGRATION - Application for permanent residence - whether applicant fails to pass the character test - whether applicant not of good character - past and present general conduct - immigration misconduct - whether discretion should be exercised - Direction No. 17 - decision set aside.

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

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, No. 114

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

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 153 ALR 463

Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277; (2000) 56 ALD 321

Xuan and Minister for Immigration and Multicultural Affairs AAT 12128, 18 August 1997

1. This is an application in the name of Sina Yeng, whose correct name is Gov Geck Ngor, for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs, refusing to grant her application for a permanent residence visa on the basis that she does not pass the character test pursuant to s. 501(6) of the Migration Act 1958 ("the Act") as she is a person not of good character having regard to her past and present general conduct: s. 501(6)(c)(ii) of the Act. The decision was notified to the applicant in a letter dated 11 February 2000.

"501 (1) 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.

(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;

Otherwise, the person passes the character test."

3. Section 501 in its present form is a result of the amendments introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, No. 114, with effect from 1 June 1999. In determining whether a person satisfies the character test set out in s. 501(6) of the Act regard is to be had to either or both criminal and general conduct both past and present. If as a result of an examination of that conduct, a finding is made that a person is not of good character then he or she fails the character test. It is then necessary to decide whether to exercise the discretion in s. 501(1) of the Act in favour of the person notwithstanding the adverse finding as to character.

4. The concept of "good character" which was discussed by Lee J in Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-2; 139 ALR 84 at 94-5 refers to the enduring moral qualities of a person and not to reputation or repute. This approach was endorsed by a Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 153 ALR 463 and in Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277; (2000) 56 ALD 321. In Goldie the Court said at 324:

"The concept of "good character" in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry."

5. For the purpose of the making of decisions under s. 501 of the Act to refuse, or cancel a visa, the Minister has issued Direction No. 17 with effect from 16 June 1999 which has the force of s. 499 of the Act ("the Direction"). The Direction provides guidance to decision-makers in making a decision to refuse or cancel a visa under s. 501 of the Act. Part 1 of the Direction relates to the application of the character test and Part 2 of the Direction relates to the exercise of the discretion.

6. It was submitted by Mr Knowles, solicitor for the respondent that the applicant is not of good character because of her immigration misconduct in entering Australia on a false passport, maintaining a false identity for her and her son, entering into a sham marriage, making a false application based on untrue allegations of domestic violence and continuing to mislead departmental officers in relation to these matters.

7. From the evidence and material before the Tribunal, the following broad background emerged. The applicant was born in Cambodia on 5 May 1961. Her real name is Gov Geck Ngor. She was one of seven children in her family, four boys and three girls. Her father was killed in 1970 during the regime of the notorious Pol Pot and she has not heard from two brothers and one sister since this time and is unaware whether they are alive or dead. She did not have any schooling. At age 9, during the Pol Pot regime, the applicant was forced to work as a farm labourer. Later on she worked for a few years on a Government farm. In 1982 she started her own business selling ice at a roadside stall. In 1986 she married Cheoung Eang You ("the first husband"). They had a son Cheoung Eav Hong ("Cheoung") born on 14 March 1986. This child is included in the applicant's application for permanent residence. In late 1994 the applicant and her first husband separated. They were divorced in 1995, with the applicant obtaining the family's house. They have had little contact since. Thereafter the applicant continued to live in Soung village in Kompong Cham Province where she raised her son on her own. She began buying produce and taking it to the Cambodian Vietnamese border where she sold it to a market. In her evidence she said that this work was very dangerous as to get to the border she had to travel through areas frequented by bandits. She was often robbed and said that once she had been the victim of rape. The trip from her village to the border could take three to four days. During her absences her son would stay with a neighbour.

8. The applicant's mother lives in Cambodia. She shares a house with one of her daughter's, her husband and their three children. In Cambodia the applicant would see her mother and sister three to four times a year. The applicant has two brothers in Australia. The elder, Gov Chung Hak ("Chung") was the first to arrive in Australia. He then sponsored the younger brother, Chung Hong Ngau ("Hong"), who had been living in a refugee camp in Thailand. Hong arrived in Australia in May 1988. Hong became an Australian citizen on 19 March 1991 (Ex. R2). Hong assisted the applicant before the Tribunal. She also had the assistance of an interpreter. Before she left Cambodia the applicant had maintained contact with Chung and Hong. Chung would often write and visit Cambodia. Hong wrote less and visited once in 1994.

9. In 1994 Chung sponsored the applicant for migration to Australia ("the 1994 application") under the special assistance category. It was unsuccessful. This application was not in the documents before the Tribunal.

10. In 1996 Hong sponsored the applicant and her son for migration to Australia again under the special assistance category ("the 1996 application"). Hong filled out the application form in Australia for his sister and sent it to Cambodia partly completed. It contains some inaccuracies, for example that she had eleven years schooling. The applicant said she was unaware of what was written as she could not speak, read or write English. The applicant said that her cousin, who worked in Phnom Penh, helped her to lodge the 1996 application at the Australian Embassy in Phnom Penh on 29 July 1996 (Ex. R2).

11. A letter dated 8 August 1997 from the Australian Embassy in Phnom Penh advised that the 1996 application for migration was not successful. Both the applicant and Hong denied that they had received this letter or that they were aware that a decision had been made in respect of the 1996 application. The contact address given in the 1996 application is C/- Ngeth Davuth (the applicant's cousin), Neak Poon Hotel, 331 Road Monivong. The letter does show an error in the street number, but is addressed to the Neakpoan Hotel at Monivong Blvd. According to Hong's evidence the cousin worked at this hotel.

12. The applicant said that in mid 1997 and because she had not received any decision in relation to the 1996 application, she visited the Australian Embassy in Phnom Penh with the intention of applying for a tourist visa to Australia in her correct name. She went to the Embassy with her passport in her bag and filled out the forms. At the Embassy she was told that a person with her name had already left for Australia. Upon hearing this she said that she was afraid for her life and very confused. She did not show the Embassy staff her passport or make any further enquiries. She left the Embassy and threw the forms in a rubbish bin. She decided to purchase a false passport and travel documents to Australia for herself and her son. The Immigration department has no record of a person with the applicant's name entering Australia.

13. Through a friend in Phnom Penh the applicant purchased the false travel documents on which she and her son arrived in Australia on 21 November 1997. To do this she sold all her assets, house, furniture and motorcycle. She received a package containing a number of false documents in the name of Sina Yeng, including a passport, identity card, birth certificates for herself and her son, who was given the identity of Chariya Sa, and a death certificate for a husband called Sa Van. The applicant said that she paid US$11,000 for the documents, $6,000 for herself and $5,000 for her son. All she had to do then was purchase an airline ticket. She said that the three month tourist visa to Australia was already stamped in the false passport. The visa records it being granted on 9 October 1997. The false application for the tourist visa in the name of Sina Yeng is dated 25 September 1997 although its date of lodgement is unknown.

14. I consider that it is no coincidence that the applicant took these steps at this time and that she did so because she had some knowledge that the 1996 application had been refused. I am unable to accept as probable that the applicant would sell all her assets, including her home, in order to purchase false documents while awaiting the result of the 1996 application unless she was given some information about the likely fate of the application.

15. Upon arrival in Australia Chung met the applicant at the airport. She and her son stayed with him for a few days and then lived with Hong in Moe. Upon her arrival or shortly thereafter the applicant said she told her brothers that she had arrived on a false passport. She and Hong both denied that the brothers had any prior knowledge of her plans to come to Australia illegally.

16. A short time after her arrival Hong mentioned to her the name of Ross Adsett and suggested that she should get to know him. Mr Adsett, who was called by the respondent, said in a witness statement that Hong, whom he had known since 1991, had informed him that his sister was coming to Australia for a holiday. Hong introduced the applicant to Mr Adsett in December 1997. Mr Adsett said that he knew the applicant wanted to stay in Australia and was willing to help her as he wanted the companionship of a relationship. In his evidence he indicated that while a suggestion may have been made as to the payment of money in return for the marriage that this was not a serious suggestion and no money was ever offered or paid for in respect of his marriage to the applicant. I accept his evidence about this. Mr Adsett and the applicant were married on 25 January 1998. They lived together in a rental property in Moe until the end of 1998.

17. On 29 January 1998 the applicant applied for a permanent residence visa on the basis of her marriage to Mr Adsett. Attached to the application were the false birth certificates of the applicant and her son and a false death certificate of a husband. A bridging visa was issued on 27 February 1998. A departmental officer interviewed the applicant and Mr Adsett on 28 April 1998, at this time the applicant was maintaining her false identity as Sina Yeng.

18. In mid 1998 a person informed the Immigration department that the applicant was in Australia illegally. The department then began to investigate the applicant and sought the tourist visa application of Sina Yeng from the Australian Embassy in Phnom Penh.

19. Towards the end of 1998 the applicant's marriage to Ross Adsett began to deteriorate. A factor was her husband's gambling. Mr Adsett left the house on 26 December 1998 and did not return. He has not seen the applicant or her son since. He now lives interstate. In evidence he told the Tribunal that he regarded the marriage as genuine and that he would reconcile with the applicant if she wished it. The applicant acknowledged that when she came to Australia she was anxious to stay and would do anything to stay in this country. While this was the primary reason she married Mr Adsett, once married she applied herself to the relationship to the extent that she attended to their domestic arrangements, Cheoung called Mr Adsett "Dad" and said that they went "fishing, swimming, shopping and playing" together. I am satisfied the marriage was not a sham. That while the applicant had an ulterior motive when she married, both made genuine efforts for the marriage to work.

20. In January 1999 following the break up of the marriage the applicant amended her application for permanent residency to one on grounds of domestic violence. Filed with the department in support of this application were statutory declarations from Ms Sinha from the Gippsland Migrant Resource Centre, a general practitioner Dr Clarke, and a social worker, Ms Warren. However, in her evidence the applicant denied that Mr Adsett had been violent in their relationship and said that she had been encouraged to make these false allegations and had done so in order to stay in Australia. At that time the applicant had little understanding of English and while the applicant has to accept ultimate responsibility for her application, on the evidence before me the professionals were unquestioning in their acceptance of the allegations and the course of action pursued by the applicant's advisers at that time. In saying that I acknowledge that I have not heard from the professional people concerned, only read their reports.

21. The visa application of Sina Yeng was provided to the department. Affixed to it is a photograph of a person who was not the applicant. On 7 September 1999 Ms Sinha wrote to the department on the applicant's behalf. This letter maintained the applicant's false identity of Sina Yeng.

22. On 30 January 1998 and again on 20 August 1999 Hong made a false statutory declaration to the effect that he had known the applicant as Sina Yeng since the Khmer Rouge regime.

23. The applicant attended another interview with the Immigration department on 14 September 1999. A Cambodian interpreter was present. From the officer's notes the applicant was told that the department considered that the photograph on her passport had been substituted, and that the tourist visa application contained a photograph which was not of her. Further, that the department believed that her real name was Gov Geck Ngor. The applicant again maintained that her identity was Sina Yeng and denied that she was Gov Geck Ngor and falsely sought to explain the discrepancies in the documents.

24. The department sought from Phnom Penh copies of the 1994 application and the 1996 application. A further interview was conducted on 17 November 1999. At this interview the applicant admitted to her true identity. In her evidence the applicant's excuse for her deception was that she was afraid of being sent back to Cambodia.

25. The department had also been told by its informant that the applicant had shot people in Cambodia. The applicant denied this and I am satisfied that there is no substance to this allegation. The applicant has no criminal convictions in Cambodia or in Australia.

26. Since arriving in Australia the applicant has made efforts to establish a life here for her and her son. In 1998 the applicant enrolled in an English course at the Central Gippsland Institute of TAFE. Her teachers speak of her conscientious efforts to learn English, which continued after she commenced working in 1999. Since receiving permission to work the applicant has worked long hours on fruit and vegetable farms. The applicant has an Australian Taxation Office file number and pays income tax. Before me were testimonials from employers who spoke in glowing terms of her industry and dedication.

27. In relation to the applicant's general conduct while I accept that her behaviour was motivated by her desperation to leave Cambodia and start a fresh life for herself and her son in Australia, the steps she took to gain entry to Australia using false papers and once here making false statements to maintain her false identity until avenues for continuing the deception were virtually exhausted disentitle her to a favourable character assessment. The calculated breach of Australian migration laws reflects poorly on her enduring moral qualities and leads to the conclusion that she is not of good character and therefore fails the character test.

28. I turn now to consider the exercise of discretion notwithstanding the finding that she is not of good character. In considering the discretion the Tribunal is required to undertake a balancing exercise having regard to three primary considerations and other relevant considerations. The primary considerations are stated in the Direction to be:

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

(b) the expectations of the Australian community; and

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

29. The applicant does not have a criminal history. Despite her conduct as outlined earlier in breaching Australian migration laws, she does not in my opinion pose a threat to the Australian community. The Direction (paragraph 2.4) makes plain that the focus of Government concern understandably is on the actions of criminals and the threat they pose to community safety and order with particular emphasis on drug and violence related offences. The applicant's conduct has nothing to do with offending of that nature.

30. The applicant's conduct is however to be viewed seriously: paragraph 1.9(b) of the Direction. Her behaviour in presenting forged papers to gain entry to Australia, making false statements and maintaining a false identity (all of which she ultimately admitted) for the purpose of gaining permanent residence status amounts to deliberate breaches of Australia's migration laws. That being so the question arises whether the community is at risk by her continued presence.

31. I have come to the view that the applicant's transgressions are likely to be confined to the deception exhibited for the purpose of gaining entry to Australia. She has no criminal convictions nor is there evidence to suggest she is likely to engage in criminal activity here. To the contrary she has demonstrated by evidence of hard work, a commitment to improve her personal circumstances and provide opportunities for her son.

32. In the context of the present matter, there is considerable force in the submission of Mr Knowles on the question of general deterrence. It is, I accept reasonable to conclude that the grant of a visa to the applicant would be viewed as an encouragement to others contemplating similar behaviour, conversely refusal of the visa may be seen as a deterrent. As the Tribunal (Deputy President McDonald) observed in Xuan and Minister for Immigration and Multicultural Affairs (AAT 12128, 18 August 1997):

"The dilemma for the decision-maker in the exercise of a discretion in cases of this type becomes readily apparent. On the one hand, there are the genuinely held aspirations of the [parties] . . . . On the other hand, lie the interests of the Commonwealth in ensuring the integrity of the visa entry system to Australia. To allow a visa applicant who deals dishonestly with the system the advantage of entering into Australia over an applicant who deals honestly and genuinely with the system, may be seen to be encouraging the dishonest applicant over the honest applicant."

33. Further I accept that community expectation would generally be that persons who have engaged in immigration malpractice not be rewarded. This expectation is I suspect, lessened considerably when the person concerned has demonstrated a capacity to make a positive contribution and displayed no hint of criminal activity. So much may I think be inferred from the witnesses who were prepared to offer their support notwithstanding the circumstances of the applicant's arrival in Australia.

34. A primary consideration is also the best interests of the applicant's son Cheoung. He was born in Cambodia and attended school there for five years. He is now 14 years of age and has lived in Australia with his mother since arrival in November 1997. He attended primary school in Moe and is now in secondary school. Since February 2000, when his mother was taken into immigration detention he has lived with his uncles in Melbourne and attends a secondary college. School reports show that he is progressing well at school and in the school community. He and his mother appear to enjoy a good relationship. She has been his primary carer. Cheoung cannot remember the last time he saw his father who lives in Cambodia. He says that he misses his friends from Cambodia but does not keep in contact with any one there. He wants to stay in Australia where he feels safe. Clearly if he returns to Cambodia he would not face any language or other cultural barriers. He has relatives there but contact is spasmodic. He is not in contact with his father. If the applicant is returned to Cambodia presumably Cheoung will accompany her. The circumstances he would face upon return to Cambodia depend upon what his mother can arrange for both of them. Given that she sold all her assets to travel to Australia I think it is likely that it would be even more difficult than when they left for the applicant and her son to re-establish themselves. Cheoung impressed me as having adjusted well to life in Australia and is anxious to remain. He appears to have the capacity and desire to succeed. I have little doubt that the applicant and Cheoung could reasonably expect to enjoy a better standard of living in Australia than the one they left behind and although Cheoung is not an Australian citizen or permanent resident his best interests would be served remaining in Australia and living with his mother for the foreseeable future.

35. It is appropriate that other considerations where relevant, although given less weight than primary considerations, be taken into account. The applicant's brother Hong is an Australian citizen with close bonds to his sister. I accept his evidence of the hardship he would suffer if his sister and nephew were returned to Cambodia however, the weight to be given to this hardship is tempered by his involvement in the immigration malpractice of the applicant.

36. I also take into account that the applicant has demonstrated a commitment to Australia. As mentioned earlier she has no criminal history and objectively she gives every indication of wanting to be a good citizen of this country. In conducting a review of this nature the Tribunal is concerned not only with past events but current circumstances. In looking beyond the phase in her life of immigration misconduct the applicant has demonstrated a determination and commitment to make a better life for her son and herself and in the process make a contribution to Australia as her employment record has indicated. This evidence of recent good conduct is a relevant consideration in obtaining a complete picture of her character and I take this into account in the exercise of discretion.

37. A further consideration is a significant compassionate one. The applicant and her family have endured much. They were directly affected by the brutality of the Pol Pot regime in Cambodia. She has had a hard life, suffering deprivation, notably the absence of any formal education, something Australians take for granted. In the simple yet powerful aspiration of seeking a better life for herself and, foremost for her son, is the context from which her immigration misconduct emerged. Australia prides itself as a humane society. The Direction recognises significant compassionate circumstances: paragraph 2.17(j). In my opinion these circumstances and the potential she has shown to be a good citizen of this country combined with the best interests of her son outweigh the factors discussed in these reasons related to her immigration misconduct.

38. For these reasons the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa the subject of the application for review should not be refused under s. 501 of the Act.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of

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

For the Applicant Mr H.C. Ngau (applicant's brother)