Chea and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1315
•2 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/559
GENERAL ADMINISTRATIVE DIVISION ) Re CHENG CHEA Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date 2 December 2004
PlaceSydney
Decision The decision under review is affirmed. [SGN] Deputy President J Block
CATCHWORDS
MIGRATION ACT – Application for a spouse visa – Applicant came to Australia from Cambodia with her family under the sponsorship of her uncle – Applicant and Visa Applicant had a relationship prior to the Applicant’s arrival in Australia – Visa Applicant applied for a student visa, a tourist visa and a business visa to come to Australia but all applications were rejected – the Visa Applicant successfully applied for a tourist visa under a false identity – the Visa Applicant eventually entered Australia pursuant to a tourist visa under the false identity – the Applicant and Visa Applicant were married in Australia – the Visa Applicant then applied for a protection visa under his false identity which was rejected – the Visa Applicant remained in Australia illegally under his false identity – the Applicant and Visa Applicant obtained a divorce – the Applicant and Visa Applicant then remarried in Cambodia in order for the Visa Applicant to be married under his real name – the Visa Applicant then lodged an application for a spouse visa which was rejected on the basis that the Visa Applicant failed the character test pursuant to s501(1) – the decision under review is affirmed.
Migration Act 1958 – sections 233, 234, 501(1)
Re Yean Uch and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 119
Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
Re Ynson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 844
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Beale and Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
REASONS FOR DECISION
2 December 2004 Deputy President J Block Part A: Introduction and Background
1. The decision under review is the refusal dated 19 March 2004 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) of an application for a spouse visa applied for by Lim Khin (“the Visa Applicant”); his application was sponsored by his wife Cheng Chea (“the Applicant”).
2. Mr Wirun Nhoung of Wirun and Co, Solicitors appeared for the Applicant; Mr Murray Allatt of the Australian Government Solicitor appeared for the Respondent.
3. The Tribunal had before it the T-Documents in two volumes lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal also admitted into evidence one exhibit marked A1, and which was a statement by the Applicant dated 10 May 2004.
4. The Respondent has furnished a Statement of Facts and Contentions dated 18 August 2004 which contains the usual helpful chronology of relevant events. Clause 4 of that statement, under the heading “Facts” reads as follows:
“Date
Event
5/4/1975
Visa Applicant was born in Cambodia [T4, f39].
26/6/1978
Review Applicant was born in Cambodia [T20, f285]
Circa 1997 or before
Review Applicant arrives in Australia with family. Review applicant and Visa applicant were known to each other prior to Review Applicant coming to Australia.[ T24 , f417]
30/06/1997
Applicant applies for Student Visa to Australia [T4, f39] In this application the applicant claims to be single and without children.
14/10/1997
Applicant lodges Tourist Visa Application [T6, f67] This application is lodged BEFORE the Student Visa Application is determined. In the Tourist Visa Application the applicant claims to be married with two children. His name and other details are otherwise correct
22/10/1997
The applicant’s Tourist Visa Application is refused after discrepancies between the student visa and tourist visa were identified. [T2 , f7]
29/5/1998
Student visa application subsequently refused. [T2, f7]
10/06/1998
Applicant applies for a Temporary Business Entry Visa.[T8, f104]
19/07/1998
Temporary Business Entry Visa refused [T2, f8]
23/12/1998
Applicant applies for 676 Tourist Visa in false name of TAING Heng (DOB 01/01/1969) [T10, f133]
5/01/1999
Tourist Visa in name of TAING Heng approved[T2, f8]
7/01/1999
Applicant arrives in Australia under false identity of TAING Heng [T29 , f499]
26/02/1999
Applicant marries Review Applicant under false name of TAING Heng [T27 , f 271 - 276]
07/04/1999
Applicant applies for Protection Visa under false name of TAING Heng [T14 , f202]
16/4/1999
Protection Visa application refused [T16, f230]
29/03/2000
Review applicant obtains grant of Australian citizenship [T20, f286]
11/03/2003
Review Applicant “divorces” TAING Heng (aka the applicant) [T20 , f286]
12/04/2003
Review applicant divorce from TAING Heng absolute on that day [T20, f374]
13/04/2003
Review applicant marries applicant ( LIM Khin aka TAING Heng) [T20, f283]
13/05/2003
Applicant applies for spouse visa based on marriage to Review applicant [T20,f280] The application itself contains significant false answers to questions in the form. In addition the application was accompanied by a statement of the applicant which was false [T20, f318]
20/05/2003
Department writes to applicant to arrange interview [T21, f398]
20/06/2003
Applicant interviewed by DIMIA officers in Phnom Penh [T22, f 399] The interview is riddled with false answers regarding the applicant’s several applications for visas to Australia and denying his use of the false name TAING Heng.
20/06/3003
Letter from Department to applicant requiring production of various pieces of evidence concerning the marriage of TAING Heng to the Review applicant. [T24, f408]
08/07/2003
Applicant provides sworn declaration of his circumstances “confessing “ the truth.[T24, f409] This declaration was also accompanied by statements from the Review applicant and her parents [f413 , 415 , and 417]
3/10/2003
Department letter to applicant re s.501 requesting comment [T26, f445]
27/10/2003
Statement and submission by applicant seeking exercise of discretion favourably to the applicant [T26 , f452]
19/03/2004
Department letter to applicant advising decision refusing spouse visa with reasons for decision [T2, f5 to 14]
7/05/2004
Review applicant lodges application for review with AAT [T1 , f3]”
5. A document entitled “Statement of Further Facts and Contentions” dated 11 August 2004 was submitted on behalf of the Applicant. That document was not in fact a Statement of Facts and Contentions but rather a statement by the Applicant; it reads as follows:
“. . .
a. This Statement is made by me, CHENG CHEA of 86 Buckingham Street, CANLEY HEIGHTS in the State of New South Wales.
b. My husband, LIM KHIN, and I have been no less than honest in dealing with the Department of Immigration and Multicultural Affairs (DIMIA), upon being requested to be truthful to the department.
c. In response to the Department’s written request dated 20 June 2003 [S37 Documents, Vol 2, page 408], my husband (the visa applicant), both of my parents, and I did submit a number of statements [Pages 409-418 of s37 Documents, Vol 2] to the Department honestly revealing our true circumstances and admitting that my husband had assumed a different identity, through an agent, in order to gain entry to Australia.
d. In addition to my husband’s admission to the production of documents containing false/misleading information, my husband also provided his reason for assuming a different name in the first place. This reason was clearly set out in his Declaration signed by him on 08 July 2003 [Page 411 in Vol2 of S37 Documents].
e. My husband’s initial application for a student visa was lodged on 30 June 1997. It took 11 almost one year for the Department only to advise my husband that the application was refused. In that application, my husband was honest and truthful about his personal details and circumstances [Pages 39 to 46, Vol 1, S37 Documents].
f. In October 2003, my husband and I received a letter dated 03 October 2003 from the Department setting out the Department’s Notice pursuant to Section 501(1) of the Migration Act 1958 of its intention to refuse the spouse visa for which my husband applied on 13 May 2003. A copy of this letter constitutes pages 445 to 448 of S37 Documents Vol 2.
g. The purpose of the letter was to provide my husband with an opportunity to comment on certain factors which the Department had taken into consideration in determining whether my husband’s application was liable for refusal by reason set out in Subparagraph 501(6)(c)(ii) namely whether he passed the character test. And if he does not whether the Department should exercise its discretion in his favour.
h. In response to the Department’s Notice dated 03 October 2003, my husband again submitted a written statement admitting that he did assumed the name of HENG TAING in order to gain temporary entry into Australia after his initial and truthful application and his other subsequent applications were denied. He did acknowledge and did apologize for the falsity in his previous statements and documents. He stated that it was his one-off mistake in his attempts to join a person with whom he was blindly in love and submitted that it was not his usual general conduct and behaviour to do what he had done, [S37 Documents, Vol 2, pages 448-458].
i. It was very unfortunate for my husband to have engaged an unregistered agent to prepare and lodged his application for protection visa. The applicant’s address stated in the application by the agent namely: 4 Kendall St, Harris Park NSW was never instructed to him by my husband. Having said this I am not saying that my husband should be excused for delivery of or causing to be delivered false/misleading documents to the Department.
j. I hereby submit to the tribunal that even if my husband does not, in the opinion of the decision-maker, pass the character test set out in s501(6), the decision-maker is bound by the Minister’s Direction No. 21 made under s499 of the Migration Act. It is the spirit and the intendment of the Direction that the decision-maker is, in the exercise of his discretion, bound to consider factors set out in paragraphs 33 to 42 in my previous statement submitted to the Tribunal.”
6. Subsequently, another document also entitled Statement of Further Facts and Contentions was submitted on behalf of the Applicant. Although it was also couched in the form of statement by the Applicant, it is more aptly characterised as a Statement of Facts and Contentions; it is referred to, so as to distinguish it from the statement referred to in clause 5, as “the October statement”; it reads as follows;
“. . .
1.This Statement is made by me, CHENG CHEA of 86 Buckingham Street, CANLEY HEIGHTS in the State of New South Wales, the Applicant in this matter.
2.It is the intention of the Migration Act that the application of Character Test as set out in Ministerial Direction No. 21 Part 1 pursuant to subsection S501(6)(c)(ii) is to be applied INDEPENDENTLY of the fact whether or not an applicant has conceded he/she passes the character test or otherwise he/she believes that he/she was of good character.
3.The Applicant contends that the Tribunal should not exercise its power under Section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, because in reaching its decision the decision-maker failed to consider the following fundamentally relevant facts:
(a)The decision-maker grossly failed to take into account relevant facts and considerations set out in Ministerial Direction per se namely Ministerial Direction No. 21 Part 1 paragraph 1.9. Section 499(2A) of the Migration Act provides that a person or body MUST comply with directions under subsection (1) namely Ministerial Directions [No. 21] because they are Directions created pursuant to section 499(1) [s37 Document, Vol 1, page 28].
(b)The decision-maker deliberately omitted to have regards to the facts set out in paragraph 2.17 of the Ministerial Direction No. 21. A decision-maker is directed, where relevant, to take into account the extent of disruption to the non-citizen family, business and other ties to the Australian Community. It is the spirit and intendment of this Direction to uphold Article 23.1 [s37 Document, Vol 1, page 36] of the International Covenant on Civil and Political Rights which provides that:
i.The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State: Ministerial Direction 2.17(a).
ii.Paragraph 2.17(b) of the Ministerial Direction also imparts a decision-maker to take into account the extent of disruption to the non-citizen’s genuine marriage to an Australian citizen [s37 Document, Vol 1, page 36]. And the decision-maker had before him sufficient evidence to support the genuineness of such marriage.
4.The issue of residual discretion has no relevance in this case. The relevant power which should be exercised by the Tribunal in this case is the power set out under section 43(c)(i) because the decision made by the delegate was so prejudicial and fundamentally flawed that no reasonable decision-maker with the same facts before him could/would have arrived at the same conclusion.
5.The applicant contends that in reaching his decision, the decision-maker deliberately acted not within the scope of power conferred upon himself under section 499(1) which created the Ministerial Directions per se. The decision-maker’s failure to take into account relevant considerations enshrined in the Ministerial Direction itself amounts to no less than deliberate disregard of the power per se conferred upon himself.
6.For reasons given above, the applicant therefore submit to the Tribunal that it is appropriate in this case for the Tribunal to exercise its power and discretion under section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth).”
7. The October statement gave rise to argument which took up a considerable portion of the morning of the first hearing day (4 November 2004). Tp409 – Tp411 is a statement by the Visa Applicant in which he admitted that he had made a considerable number of false statements. Mr Allatt contended that the October statement, considered in the light of the Visa Applicant’s own statement had the effect that he, Mr Allatt, was in some respects unclear as to the nature of the Applicant’s case. By way of one example only, clause 4 of the October statement contains a contention that “the issue of residual discretion has no relevance in this case”.
8. There are other aspects of the October statement which are, and this is something of an understatement, unfortunate. It contains allegations of bad faith on the part of the Respondent; see in this regard clause 3(a), the first sentence of clause 3(b) and the whole of clause 5. I do not think it necessary for me to deal with the October statement in detail. Suffice it to say that all of the allegations to which I have referred were entirely without foundation and should not have been made. In particular allegations that the decision maker failed (and whether deliberately or not) to take relevant considerations into account were found, upon considering the relevant decision (Tp5 - Tp14) to be groundless. The behaviour of Mr Nhoung in this context was unfortunate, moreover because he otherwise handled the matter quite competently. At all events he withdrew the first sentence of clause 4 of the October statement, and so that it was thus clear that the issues in this matter are, as they so often are in matters of this nature, quite simply whether the Visa Applicant fails the character test, and if he does, whether the residual discretion set out in part 2 of Direction 21 should be exercised in his favour.
Part B: the Evidence of the Applicant
9. The Applicant gave evidence with the aid of an interpreter in the Khmer language. Although the Applicant has been in Australia since 1997, she does not appear to speak much English, and needed the interpreter’s aid. She resides in Canley Heights and works for ABC Tissues.
10. The Applicant was born on 26 June 1978 in Cambodia. She was educated in Cambodia up to the level of Year 8 in Australian terms. She did not ever work in Cambodia. The Applicant became resident in Australia in August 1997 having come to Australia with her family who had been sponsored by her uncle. Before leaving Cambodia she had formed a relationship with the Visa Applicant. It would appear having regard to the Visa Applicant’s evidence that the original introduction came through their respective fathers who are friends. If this was (to any extent) an arranged marriage, there is no suggestion that the relationship is not genuine.
11. The Applicant was asked at an early stage why she did not marry the Visa Applicant in Cambodia after she had taken up taken up residence in Australia. Her answer was that she could not do so because at the relevant time she had permanent residence status only but not citizenship. She said also that she told the Visa Applicant that after she obtained citizenship in Australia and had her own home, she would return to Cambodia and marry him.
12. The Applicant said that she knew the Visa Applicant as Lim Khin and that that is his only name.
13. The Applicant was then taken in evidence through the various visa applications made in Cambodia by the Visa Applicant. It is not necessary for me to deal in detail with the Applicant’s evidence in this context since it will be traversed when I deal with the evidence of the Visa Applicant. The Applicant said that of the four applications made in Cambodia, the first two applications were truthful but the others were not. It was put to her that the fourth application, which was successful, was made in the name of Taing Heng which was not the Visa Applicant’s name. Her answer was that the Applicant had the right to use other names and that there was no intention to mislead.
14. Having obtained a tourist visa as Taing Heng, the Visa Applicant arrived in Australian on 6 January 1999 and he married the Applicant under this false identity on 26 February 1999. He did not tell the Applicant in advance of the fact that he would be coming to Australia and she first knew of his arrival when he phoned her from his aunt’s home in Sydney. After marriage the pair lived at various addresses in Canley Heights. The Applicant continued to work for ABC Tissues; the Visa Applicant did not work but helped the Applicant’s parents with household tasks.
15. The Applicant said that after the marriage, she and her husband asked an agent to lodge a spouse visa application. The Applicant said that she did not know the agent’s name because he did not giver her a business card. She stated that the only thing she knew about the agent was that he was Chinese. Although the Applicant could not speak to him in Chinese her husband, the Visa Applicant could understand him.
16. The Applicant’s evidence was that the agent (name unknown) had said that they could lodge a spouse visa application. However, the agent did not lodge a spouse visa application but instead lodged a protection visa application on behalf of the Visa Applicant under his false name. Some four years later in January 2003, and having heard nothing from the agent, they discovered (so her evidence went) that the protection visa application had been refused.
17. The Applicant had asked the Visa Applicant why when he came to Australia he came using a different name; he answered that he had done so because his applications in his own name had been refused.
18. The Applicant and her parents became unhappy about the Visa Applicant’s use of a false identity and desired that steps be taken to regularise the position. It was this decision which resulted in their consulting a solicitor named “Sam” (who according to the Visa Applicant had offices somewhere between Canley Heights and Sydney) in order to obtain a divorce. Tp374 is a Certificate of Divorce from the Federal Magistrates Court declaring that a decree nisi of dissolution of marriage was made on 11 March 2003 and that it became absolute on 12 April 2003. As to how precisely the divorce came to be obtained was and remained a mystery. As to whether a divorce was needed at all is distinctly dubious. The Applicant and the Visa Applicant were married and the fact that he used a different name for this purpose would arguably not affect that basic fact. As to what instructions were given to “Sam” (and no other name could be furnished) as to grounds for the divorce were established was never clarified in any manner whatever. As to whether it was the Applicant or the Visa Applicant who sought the divorce and consulted with and instructed “Sam” is equally unclear. It was necessary no doubt to instruct Sam that the marriage had broken down and that there had been a separation; however, there never was a breakdown or a separation. The Visa Applicant in his evidence spoke of a quarrel, but in brief terms only.
19. After it was discovered in January 2003 that the Visa Applicant was illegally in Australia, the Visa Applicant reported to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) in order to seek permission to leave Australia and to obtain a visa for this purpose; he did in fact return to Cambodia on 4 March 2003. The Applicant has travelled to Cambodia on four occasions (see Tp500 as to the dates involved). On the first of those trips she and the Visa Applicant were remarried in Cambodia, but this time under his real name. When the Applicant returned to Australia in September 2003, she was charged with offences under sections 233 and 234 of the Migration Act 1958 (“the Act”). She pleaded guilty and was sentenced to a fine of $2 300. The size of the fine indicates that the offences were treated as serious. There was no specific evidence as to what precisely she was charged with but apparently use of false documents and harbouring an illegal person were relevant factors.
20. The Applicant was asked what she would do if the decision under review was affirmed. She said that she would not join the Visa Applicant in Cambodia because she does not wish to live there. She stated that it is too hot, and “there is no peace and I don’t want to be separated from my family”. As to her statement that there is no peace she said that she feared that war may break out again.
21. There can be no doubt that the Applicant knew that the Visa Applicant had entered Australia with false papers. She married him under his false name and assuming that what she said about the agent was true, a spouse visa was to have been sought by them, and in respect of the Visa Applicant under his false identity. It was put to the Applicant that the Visa Applicant had come to Australia on a tourist visa which was subject to an 8503 condition which prohibited any application other than a protection visa application. Her answer was that the agent was instructed to lodge a spouse visa application and that she found out that her husband was illegally in Australia only in January 2003.
22. Mr Allatt in a lengthy cross-examination took the Applicant in some detail through the various visa applications made by the Visa Applicant in Cambodia. She acknowledged that there were false statements in them. She said also in relation to the successful tourist visa application (in the false name of Taing Heng) that if she had known she would not have approved but “maybe he had no other chance”. When asked how the Visa Applicant could have obtained a passport in a false name, she said that he was entitled to use a new name. She answered that she did not know how he could have obtained a birth certificate in a false name. She denied any knowledge of various persons named in the false accompanying papers. She said that the Visa Applicant was known in Australia as Taing Heng.
23. In further cross-examination the Applicant said that the agent who lodged the protection visa application was chosen because “I have spoken to someone and they recommended him”. She also stated that he came to their home and that he charged a fee of $3000 and that he said he could help them lodge an application for a spouse visa. She said that she was present when her husband signed documents and that this occurred “a couple of times”. She denied any knowledge of an address in Harris Park which is the address specified in the protection visa application (Tp 208) for correspondence.
24. The mysterious agent (whose name she did not know) was addressed by her as “uncle”, apparently a term of respect. When asked whether she had enquired about the fate of the application her answer was that she did enquire and was told to keep waiting. When it was put to her that she must have known where to contact him in order to enquire, her answer was that the agent would from time to time just drop in on her and the Visa Applicant. It must be remembered that she had said that they used the agent’s services in accordance with a recommendation; a recommendation would surely have informed her (at the very least) of the name and business address of the agent.
25. During cross-examination about how the divorce came to be obtained, the Applicant was asked whether she told “Sam” that the marriage had broken down for 12 months in accordance with the legal requirement of an irretrievable breakdown of marriage evidenced by 12 months separation; she did not answer. She said also that both she and the Visa Applicant spoke to “Sam” about the divorce. The Visa Applicant in his evidence said that he did not speak to “Sam” about the divorce but that he did speak to “Sam” about the Visa Application.
26. The Applicant said that when the Visa Applicant came to Australia he brought with him a special wedding dress for her. The Visa Applicant’s evidence in the same context was that he did not do so.
27. The Applicant had done well in her employment. She now earns $700 per week clear (which I take to mean after tax) and she has purchased a property and is making payments in reduction of a mortgage.
28. There were aspects of the Applicant’s evidence which cannot be accepted. All of the evidence as to the unknown agent must in the light of the Visa Applicant’s evidence be doubtful. So for that matter is her evidence as to the divorce which was and remains a mystery. The Applicant persisted in referring to her husband’s actions as “mistakes”.
29. When it was put to the Applicant that because of her Cambodian origins she could live in Cambodia with him she said “I accept that but I like Australia”.
Part C: the Visa Applicant’s Evidence
30. The Visa Applicant gave evidence by conference telephone from Cambodia with the assistance of an interpreter in the Khmer language. He is currently working at a kiln owned by his father. He first met the Applicant in 1995 upon having been taken to meet her by his father; he said “our fathers are close friends”.
31. The Visa Applicant was educated in Cambodia to approximately the same level as that of his wife. He said that he studied English and does have some English in that “I can read some English but my writing is not neat”.
32. When the Visa Applicant knew that the Applicant would be moving to Australia he lodged four visa applications from Cambodia in order to come to Australia. I will refer to those applications in more detail later in this Part C. In examination in chief the Visa Applicant was asked how they came to employ the agent who lodged the protection visa application. He was asked in particular “how did you get to know this agent”. His answer was “I heard about this man by word of mouth, I was told he’s good”. A few minutes later he said that while on a street, he overheard a conversation between two people speaking Chinese which he understands. That conversation was about immigration. He then approached one of them to ask for assistance in connection with a visa application. He said that that visa application made by one of those chance-met men was not successful and he found out that this was so only in 2003.
33. After waiting for a long time without result he asked “Sam” (the solicitor referred to previously in these reasons) to enquire about the visa lodged by the agent. He thus discovered, but only in January 2003, that the application which had been lodged was a protection visa application (not a spouse visa application), and that it had failed and in consequence, he had been in Australia illegally for some years. He said also that the agent disappeared in 2002.
34. As to the divorce, the Visa Applicant was asked whether he had applied for it himself or whether someone else did it. The answer was “Sam”. However, he also stated that he did not ever speak to Sam except when he sought news of the visa application. When asked why they got a divorce, he answered “because we had an argument but our divorce was not a true divorce. The reason we made up the divorce, I want to get my real name back because my parents-in-law weren’t happy that I used someone else’s name”. He was then asked in particular whether he had used somebody else’s name and he answered that it was not anybody’s name.
35. Asked about his interview in Cambodia at the Australian embassy on Tp399 –Tp406. He answered “during the interview I was confused and I didn’t know what I was doing. Because I used the wrong name I was upset and confused”.
36. The following provisions of this Part C relate henceforth to the cross-examination of the Visa Applicant.
37. By mid 1997 the Visa Applicant knew that the Applicant would be going to Australia. Before she left he lodged his first visa application under the name Lim Khin which is his real name (Tp 39). It was lodged in June 1997 (before the Applicant left for Australia) and was a student visa application. It was put to him that he had stated in that application that he wanted to go to Australia to study general English. His answer was “no, I said that I wanted to go to Australia with Cheng”.
Mr Allatt then put it to him that his application was for a student visa to study general English. He answered “my full intention was to be reunited”. It was then put to him that the student visa application is in English and since he had said that he prepared and lodged it himself he could presumably read and write English. His answer was “it is true that I lodged it myself. I asked a friend to write it for me because my hand writing is not neat”.
38. It was then put to the Visa Applicant that he lodged a tourist visa application in his real name in October 1997 (Tp 67) even though at that time his student visa application had not been dealt with, and was asked whether he had heard anything in connection with the student visa application, and in particular as to whether it would be granted or refused. His answer was that that he had not. (His student visa application was refused in May 1998 some 10 months after it was lodged.)
39. It was next put to the Visa Applicant that the tourist Visa Application under his real name contained false statements in that in particular it contained the names of an invented wife and an invented child. His answer was “I was advised by my friend to do so”. (The name of that friend was never furnished.)
Mr Allatt put it to him that he invented these fictitious persons so as to indicate to the Australian Embassy that he had good reason to return to Cambodia. His answer was “no. The form was filled in by my friend. I am advised by my friend”.
40. Tp 71 indicates that in the tourist visa application in his real name he said that he was married to “Sok Leakhana” and that he had a female child named “Lim May Lin” aged two years old.
41. The Visa Applicant said that he did not at that time have any knowledge of the law and that he did not know that telling lies was unacceptable in Australia. When asked whether telling lies was acceptable in Cambodia, he said that it was also unacceptable in Cambodia.
42. When the tourist visa application in his real name failed, the visa applicant in June 1998 lodged a business visa application which was also lodged under his real name (Tp104). Although it recorded a desire to investigate certain business opportunities in Australia his real reason was to be reunited with the Applicant. The business visa application referred to his employer as “Golden Sun Tiles and Brick Factory”; in fact he was then employed by his father under his father’s own name, and which was not “Golden Sun Tiles and Brick Factory”.
43. In December 1998 the Visa Applicant applied for a tourist visa using the false name of “Taing Heng” and a false date of birth (Tp133). That application was accompanied by a considerable volume of false documentation and including a false family book (Tp157-Tp160) and numerous other false documents. By way of examples some of those false documents consisted of: a false lease agreement (Tp148), authorisation letters from the Ministry of Commerce authorising Taing Heng to deal in the sale of tape recorders and television materials (Tp150 - Tp153), false birth certificates for Taing Heng’s two fictitious children (Tp169) and false bank statements and details for an account with the Foreign Trade Bank of Cambodia (Tp140 - Tp142).
The Visa Applicant said that he was advised to use the name Taing Heng by the same friend (name unknown) and that the friend procured all of the false documentation. He agreed that he is described in it as married to “Khun Srey Rath” with two children; a boy named “Tain Phala” aged 3 and a daughter named “Tain Phaly” aged 1 (see Tp138 and Tp158). He agreed also that he applied for a passport in the same false name.
44. When it was put to him that his application was accompanied by a false family book and banking records he answered “I have no knowledge of this” and as to the passport he said “it was a long time ago – I don’t remember if I signed it or someone else signed it”.
45. The tourist visa application in the false identity was granted on 5 January 1999. On 7 January 1999 the Visa Applicant arrived in Australia. In that very short intervening period he purchased an air ticket and made all other necessary arrangements. He said that he did not bring his wife anything special as a gift. Although his mother gave him two blouses for her, he did not take her a wedding gown as she had stated in her evidence.
46. Cross-examination concerning the agent resulted in answers regarding the conversation in John Street, Cabramatta as referred to earlier in these reasons. The Visa Applicant did not know how an address in Harris Park came to be inserted in the protection visa application. He persisted in his belief that the application was for a spouse visa and not a protection visa. The protection visa application was thus, according to the Visa Applicant, invented completely by the agent and he, the Visa Applicant, had no knowledge of anything in it. (It must be remembered that the Visa Applicant has some English and was no doubt aware of the fact that his tourist visa was conditional upon his not being able to make any application other than a protection visa application.)
47. The agent “uncle” came to their home “once or twice”; he said that they were to have patience. He last saw them in 2001 and he disappeared in 2002. When asked how he knew that “uncle” had disappeared, he said that he went to the place where he first met him and waited. (It will be appreciated that his evidence was that he met the agent by overhearing a conversation in John Street, Cabramatta).
48. The Visa Applicant arrived in January 1999 and consulted “Sam” in January 2003, some four years later. “Sam” found out that no spouse visa application had ever been lodged and so that he and the Visa Applicant first knew of the refused protection visa application at that time. He said that he did not speak to “Sam” at any time about the divorce.
49. The interview at the Australian embassy took place on 20 June 2003. The interview report is contained at Tp399-Tp406. Many questions were asked; to many of those questions untruthful answers were given. I do not wish to burden this decision by including the whole of the interview report. I include by way of examples the questions and answers in respect of the following:
“3. Have you ever been known by or used any other name?
A. No
. . .
21. Have you been married previously?
A. No
. . .
49. It is clear from the evidence on file that you applied for a student visa, tourist visa and business visa as Lim Khin, all were refused, then you changed your identity to TAING Heng and applied for a tourist visa under the new identity.
A. I don’t know, I only knew that I applied once for a visitor visa. At that time a friend of mine helped me. I don’t know if he lodged another application under the name of Heng. Since he helped me and I was not successful, he went missing.
50. But the application under the id was successful and you travelled to Australia under that identity?
A. I don’t know the identity of TAING Heng. I only know about Lim Khin. This friend then disappeared. This friend helped me only under the identity of Lim Khin. Only under the identity of LIM Khin. He was trying to help me with my father. I said to my friend that I would not get a visa so there was no need to lodge the visa.60. Who is your current sponsor?
A. CHEA Cheng.
61. Who was her previous spouse?
A. TANG Heng.
. . .
70. Did you know her [Chea] before she migrated to Australia?
A. No
71. When did you meet her for the first time?
A. At the airport.
72. When and why?A. I met her on 25th March 2003. My aunty (from Aust) took her photo to me when she visited in June 2001.
. . .74. Why did your aunt bring her photo if she was still married?
A. My aunty said that she had problems with her husband at that time.75. If she had problems in her relationship, why was she looking for a new husband so quickly?
A. My wife’s mother and aunty were friends and her mother had asked my aunty if she had some relatives and could she look for a husband for her.
76. I don’t understand why she would want to find a new husband if she was already married.
A. I heard that she told her mother that her ex-husband was drunk all the time and went to the clubs and had conflict.
. . .82. How did you contact your sponsor for the first time?
A. On the telephone since 2002 using phone cards.83. What did her husband think about her having contact with another man?
A. I don’t know whether he knew or not.
. . .
85. Was TAING Heng and Australian citizen?
A. I don’t know. She never said.
86. Where is he now?
A. I don’t know. She does not want to recall the old story.
. . .95. When did you meet her [Chea] for the first time?
A. First in 2002 I phoned her using phone cards. Recently I phone her through the internet. In March 2003 she started to phone me.
96. When did you decide to marry?
A. 13 April 2003.
. . .
105. Where did you say you were employed, and for how long?
A. For more than 10 years at my father’s shop.
106. If we went to your father’s shop, could they provide evidence that you have been in Cambodia for the last 4 years?
A. Yes.”
50. It will be noted that the Visa Applicant answered that Taing Heng (his false identity) was the name of his wife’s former spouse.
He again said that he was surprised and did not know what the Embassy staff would ask him. He said also that he did not know whether to tell the truth or not. He said that he did not have a chance “to consult the representative to tell me what to do”.
51. After the interview DIMIA wrote to the Visa Applicant inviting him to substantiate who Taing Heng was Tp 407. It was then finally that he told most (but not all) of the truth in a reply that commences at Tp 409. He did not in that reply deal with the protection visa application and the fact that it was completely false, as was conceded by Mr Nhoung.
Part D: The Evidence and the Character Test
52. It is clear enough that the Visa Applicant committed numerous breaches of section 234 of the Act. It must be remembered that breaches of section 234 of the Act are very serious indeed as is indicated by the level of penalties prescribed. See also clause 2.6 of Direction 21.
53. There were a number of discrepancies between the evidence of the Visa Applicant and the Applicant. On any basis I do not believe the evidence of either of them as to the agent. I also do not believe the Visa Applicant’s evidence as to the fact that each false application was completed by someone else and without his co-operation and connivance. Nor do I believe that the protection visa application was invented by the unknown “uncle” and lodged instead of an unlawful spouse visa application.
54. Mr Nhoung raised an altogether novel argument about the application of the character test. He said that in order to determine whether or not a person fails the character test, it is necessary to have regard to “other considerations” within clause 1.9 of Direction 21. In this case, so he contended, the “other considerations” arose from the unreasonable delay in respect of the original student visa application. Ten months was far too long and so he said, ten weeks should have been sufficient and normal. Thus unconscionable delay should have been taken into account.
That argument is of course nonsensical. Numerous Cambodian cases have indicated (as confirmed by warnings from the Australian Embassy) that Cambodian documentation must be regarded with great caution since a document, apparently valid on its facts will often in fact be false, (see Re Yean Uch and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 119). The fact that a student visa application made in Cambodia by a standard year 8 equivalent person took some while to process is in my view hardly surprising. But in any event, and even if there was delay, the Visa Applicant after the student visa application was lodged, and long before its refusal, lodged a tourist visa application containing different particulars and including an invented spouse and child. That to do so was stupid, given that the Embassy had both applications and could compare them was obvious.
55. The conduct of the Visa Applicant overall is such that I must hold that he fails the character test.
Part E: Direction under section 499(2) visa refusal and cancellation under
section 501 of the Migration Act 1958 (“Direction 21”)
56. In this Part E references to numbered clauses relate to numbered clauses in Direction 21.
57. Mr Nhoung’s criticisms of DIMIA in the October statement were unnecessary for two reasons. In the first instance (and of less importance) is that the decision does take into account all relevant factors. Of more importance is the fact that it is my duty to formulate the correct and preferable decision, which requires a hearing de novo and so that even if the decision maker had failed to take into account relevant considerations, this would not relieve me of the obligation to take into account all such relevant obligations. I emphasise though that despite Mr Nhoung’s criticisms the decision maker did not either deliberately as alleged or inadvertently, ignore any relevant considerations.
58. Clause 2.3 which sets out the primary considerations reads as follows:
“In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or
children and the person under consideration, the best interests of the child or children.”
59. Clause 2.3 must be considered in conjunction with clause 2.5 which reads as follows:
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk or recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
60. Mr Allatt said that he thought that the risk of recidivism is low. I do not think that it can be discounted entirely having regard to the fact that the Visa Applicant’s conduct was so deceitful and so dishonest over so extended a period.
61. In respect of deterrence, I refer to clauses 87 and 88 of my decision in Re Ynson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 844 which reads as follows:
“[87] In the context of deterrence, I refer to Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935; at paragraph 47, Deputy President Purvis QC stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
[88] As to whether visa refusals do in fact have a deterrent effect is difficult to evaluate, having regard to the number of cases of this nature coming before the Tribunal and the absence of any statistical evidence one way or another. However, to reward the Visa Applicant with a visa in these circumstances and in the light of his conduct would be altogether incorrect.”
62. I further refer to clauses 85 and 86 of my decision in Ynson (supra) with regard to the seriousness of the Visa Applicant’s conduct and the prospect of recidivism:
“[85] In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted at paragraph 36 that:-
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.
[86] In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at paragraph 33, that:
“In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.”
63. I refer in addition to clause 57 of the decision of Deputy President Chappell in Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 and where he quoted from the decision of Deputy President McMahon in Phuoc Tuong Tran; clause 57 of that decision reads as follows:
“The legitimate interests of the Australian community in the maintenance of an ordered migration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
‘Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour (at 17).’”
64. The conduct in question was undoubtedly very serious indeed within clause 2.6. Indeed, the behaviour of the Applicant was taken so seriously by DIMIA that it resulted in the prosecution of the Applicant to which I referred earlier in these reasons.
65. To affirm the decision under review will undoubtedly cause hardship to the Applicant and her family, but they were all complicit in the conduct which gave rise to this hearing. Furthermore, the Applicant has a choice; she is of Cambodian origin and could very easily choose to join her husband in Cambodia. She would not thereby lose her rights in relation to Australia. Even if she was obliged to give up her Australian citizenship in order to reside in Cambodia (and there was no evidence at all that this would be so), her Australian citizenship could be regained in the future without difficulty. She spoke of her devotion to her husband; that devotion apparently has its limits, and living in Cambodia would be too high a price to be paid.
66. I deal in conclusion with the expectations of the Australian community; clause 2.12. Mr Allatt in his closing submissions described this couple as “young and stupid”. The Visa Applicant in particular was stupid in that he repeatedly told lies to authorities who usually, but not always, knew the true position, and as Mr Allatt pointed out, all of his unlawful conduct was directed towards one end, and that is to be re-united with his wife. This being so Australian expectations might on a prima facie basis be against the grant of a visa but, so Mr Allatt fairly conceded, there might be a different view held by at least some (fully informed) members of the Australian community. I am in inclined to the view that Mr Allatt’s contentions were fairly put and have some validity; there might in other words be some division of opinion. In my view however the majority opinion would, having regard to the Visa Applicant’s blatant disregard of Australian law over so extended a period favour refusal.
67. Experience of cases involving Cambodia has taught me that the Australian Embassy warning as to false documents is altogether warranted and this case of course involved considerable false documentation. Nor was false evidence confined to the documentation. Attitudes in Cambodia as to truthful behaviour in relation to authority clearly do not accord with what is expected in Australia. But, this is a Tribunal sitting in Australia and dealing with Australian law. The Visa Applicant has breached that law repeatedly in serious circumstances. And at the end of the day his evidence before me was in a number of respects not credible, and thus constituting further breaches of section 234 of the Act.
68. There have been numerous decisions by this Tribunal in what has come to be known, although in broad terms, as “the usual situation”. The usual situation involves a person arriving on a visitor’s visa, overstaying and then lodging a false protection visa application. That person then marries at or about the time when all of his options have been exhausted and then applies for a spouse visa. In most of those decisions, and except in unusual circumstances, (sometimes involving problems of health) the Tribunal has affirmed the decision under review. Where there is a child who is an Australian citizen then of course there are different considerations. In this particular case, the behaviour of the Visa Applicant has been in some respects worse in that he used an entirely false identity over a period of a number of years. The hardship factor cannot weigh too heavily in favour of the Applicant for the reasons set out previously. Not only was she complicit in his behaviour but in addition her refusal to be reunited with her husband in Cambodia is altogether a matter of her own personal choice. To set aside this decision would run counter to numerous decisions by this Tribunal in similar circumstances and as Brennan J stated in Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634 consistency in decision making is desirable.
69. This is not a case where it is possible to exercise the discretion in favour of the Visa Applicant, and in the circumstances the decision under review is affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy-President J Block
Signed: Melinda Di Condio
AssociateDate/s of Hearing 4 and 5 November 2004
Date of Decision 2 December 2004
Solicitor for the Applicant Mr Wirun Nhoung, Wirun & Co Solicitors
Solicitor for the Respondent Mr Murray Allatt, Australian Government Solicitor
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