Cheung and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 707

DECISION AND REASONS FOR DECISION [2002] AATA 707

ADMINISTRATIVE APPPEALS TRIBUNAL     )

GENERAL ADMINISTRATIVE DIVISION     )     No      N2001/1799

Re        CHEUNG, Ngeap Seng  

Applicant

AndMinister for Immigration & Multicultural &

Indigenous Affairs

Respondent

DECISION

Tribunal              :        The Hon R N J Purvis, Deputy President
Date  :        8 August 2002
Place                   :        Sydney

Decision            : 

For the reasons given orally at the conclusion of the hearing in this matter the decision under review is set aside. The matter remitted to the Respondent for further consideration with a direction that visa applicant satisfies the character test.
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service and were corrected by the Deputy President.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
  (Sgd)     R. N. J. Purvis QC
  Deputy President

CATCHWORDS
IMMIGRATION – refusal of grant of subclass 104 remaining relative visa - whether of good character – whether false address was given in connection with migration application - evidence provided that address given correctly
Migration Act 1958

REASONS FOR DECISION

THE D.PRESIDENT:   This is an application by Mr Ngepp Seng Chheung, the review applicant, under date 28 November 2001 seeking a review of a decision made by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs, the respondent, on 15 November 2001, whereby an application made by Ms Chheung Sev Bo for a subclass 104 remaining relative visa was refused.  Mr Ngepp Seng Chheung is the brother of Ms Chheung.

The application of Ms Chheung has had a chequered history. Details of which are more particularly set forth in paragraphs 1-9 of the decision under review. By such decision Ms Chheung was found not to be of good character within the meaning of section 501 of the Migration Act 1958. The basis upon which such finding was made was that Ms Chheung had misled "the Australian Government" by applying for migration to Australia using a false address, and that in doing so she was possibly attempting to avoid scrutiny of her personal circumstances. It was further found that Ms Chheung maintained the deception throughout the processing of her application by providing documentation featuring the false address.

More particularly the delegate, in her assessment, stated as it appears at page 331 of the T documents and I quote:

I find that Ms Chheung was not truthful in her dealings with the Department.  I find that in doing so the applicant sought to gain entitlement under Australia's immigration laws for residency status for herself that she would not otherwise have been entitled to.  I have considered the applicant's statements at interview that she denied all knowledge of the contents of the current application as her spouse had organised it and pleaded ignorance to attempts to mislead the Australian Government.  I have taken into account the fact that the applicant has been unwilling to acknowledge or provide a plausible response to the adverse information relating to misleading documentation that has been put to her in relation to these issues and has not demonstrated any remorse for her actions.  I find that Ms Chheung's denial of her knowledge of a false address and misleading documentation in the current application demonstrates the applicant's willingness to provide false or misleading information to the department.  I find that the applicant provided a non-genuine family registration book which represented her claimed residential address but was later determined by the Department to be a false address. I find the applicant was willing to provide misleading information in order to enter Australia.  As a result of these factors I find that Ms Chheungs's general conduct demonstrates a conscious disregard for Australian immigration laws.  Having regard to the applicant's past and present general conduct, and based on the evidence before me, I find that Ms Chheung Sev Boy is not a good character in relation to her past and present general conduct and as such fails to satisfy me that she passes the character test.

The primary issue now arising for determination as maintained by and on behalf of the respondent is as to whether Ms Chheung did provide to the respondent a residential address which was false, and that at all material times she maintained that falsity.  In the event of there being a finding adverse to Ms Chheung then the discretionary factors would have to be considered.

At the hearing for this application for review the review applicant was represented by Mr Ron Kessell, solicitor, the respondent by Mr Glen Cranwell an officer of the Australian Government Solicitor. The documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence and marked T1-T65. Other written material was tendered as exhibits and accordingly marked as exhibits A, B and C and respondent's exhibits 1, 2 and 3. Ms Chheung, a Mr Ken Chan, a district chief, and a Mr Matthew Rendell an Australian solicitor practising in Cambodia gave evidence upon which they were each cross-examined.

The competing contentions of the parties might briefly be described as follows.  Ms Chheung described her address in her visa application as being 44 EO Street 51, Group 11, Sa Thmi 3, Cam Dun Penh.  The household registration card provided to the Australian Embassy in Phnom Penh also had this address as the residential address of Ms Chheung, as did the visa applicant's identity card.  The same address was also referred to in police criminal record certificates.  During the course of an interview in October 1998 the visa applicant asserted that she lived at this address.

The respondent maintains that the false information provided by Ms Chheung consists of the provision of an address which she contends is her residential address, but which, according to the respondent, inquiries by departmental officers have established is an address at which she does not  reside.  It is further maintained that the bogus documents are the various documents supplied in support of her visa application.

In support of the contentions so maintained by an on behalf of the respondent, the respondent relies upon evidence described as house checks.  On 10 September 2001 officers, or agents, of the respondent conducted a house check, as a result of which they concluded that Ms Chheung did not reside at the address she had given.  The representatives of the respondent spoke to a shop owner and a woman living at a house nearby to the shop.  The particulars of the inquiries so made on behalf of the respondent appear at T 297.

On 14 November 2001 Ms Chheung was interviewed by officers of the Department and it was then put to her that the address that had been specified by her as her residential address was not the place where she lived.  She maintained that she had lived at that address for, she then said, approximately eight years.  When it was put to her that this evidence was incorrect she said that she lived at the back of the premises that had been described by her - "Down a back alley", she said.   In March 2002 officers conducted what they described as a "further house check".  They said that they could not locate a house which was then described as "44 Eoz" and could not locate anyone in a back alley who recognised Ms Chheung and/or her family.

On 14 June 2002 further inquiries were made by officers of the respondent at the Tsang Cap Pasha Thmi 3 Police Station.  The document that contains a narration of the events on that day is a little uncertain in that when a representative spoke to a Mr Soo Chong, the Commune Chief of the area, initially he was uncertain as to the occupant of a named residence.  But after speaking to one of the commune officials he stated that his record disclosed that there was a house numbered as identified by Ms Chheung and that the Chheung family lived there.  He declined to give the respondent's agents access to a copy of the record.

The material that I have just shortly described is that basically upon which the rejection decision was made.  On behalf of Ms Chheung it was said that she has lived at the designated address and has there lived at all relevant times.  The finding as to false information resulted, it is said, from a simple mistake in that the agents of the respondent attended at the wrong address when conducting their field visits.

The decision to refuse Ms Chheung's application for the subclass 104 visa was made pursuant to section 501(1) of the Migration Act by a delegate of the Minister. The refusal to grant the visa was based on a finding that the visa applicant failed to satisfy the character test in section 501(6)(c)(2) of the Act, which Act and section relevantly provides:

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.  And for the purposes of this section a person does not pass the character test if, having regard to either or both of the following - that is the person's past and present criminal conduct, the persons' past and present general conduct, the person is not of good character.

It is noted by the Tribunal that the words "good character" used in section 501 of the Act refer to the enduring moral qualities of a person. The enduring moral qualities of a person necessitate an objective assessment being made and are to be established as a matter of fact. This was definitively stated in Irving and The Minister of State for Immigration, Local Government and Ethnic Affairs (1996)68FCR422, 431-432. In Goldie v The Minister for Immigration and Multicultural Affairs (1999)56ALD321, 324 it was stated:

The concept of good character in section 501 is not concerned with whether an applicant meets the higher 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. 

A determination as to whether a person is or is not of good character is to be assisted by the various matters detailed in the Ministerial Direction issued by the Minister pursuant to the provisions of section 499(1)(a) of the Act.

The relevant direction in the particular circumstances of this case is direction 21 signed by the Minister on 23 August 2001.  That direction provides guidance in making a decision as to whether there should be a grant of a visa under the Act.

It is not necessary in these reasons for the Tribunal to traverse in any detail the factual situation as it pertains to Ms Chheung.  A chronology of events has been provided by Mr Kessels in his client's statement of facts and contentions covering the period 30 January 1993 to 15 March 2002.  And that chronology is incorporated into and is to form a part of these reasons for decision.

Suffice here to say that Ms Chheung was born on 20 January 1955 in Cambodia.  That she is presently married to Mr Dep Fung Kutch and of that marriage there are four children born in 1976, 1978, 1981 and 1983.  In her application for migration to Australia of, 29 November 1995, Ms Chheung gave her address and I detail it here - although it has earlier been referred to in general terms - as house 44 EO Street 51, Group 11, Sa Thmi 3, Cam Dun Penh, Cambodia.  Ms Chheung was assisted in completing her said application by her husband.  It is as to the accuracy or otherwise of this address, as the place of residence of Ms Chheung, that the present application relates.

At the hearing of this application before the Tribunal the respondent did not call any oral evidence but relied upon the earlier mentioned documents and cross-examination of witnesses called on behalf of the review applicant.  The agents of the respondent who conducted the field visits were not available for cross-examination.

Ms Chheung, the visa applicant, gave evidence from Cambodia by telephone.  She said that the answers that she gave during her interview with officers of the respondent in Phnom Penh were true.  She says that she had lived, and still does live, at the house so described by her in her application for migration -  that she has lived there for over 10 years now.  She was questioned as to the street numbering, the location of a property – as to the location of a photocopy shop identified by the respondent's agents – she located it and said that that shop was in front of her premises.  She lives inside, she said, in a little alley near the street.  "The shop is in the main street, I am in a little street", she said.

She further gave evidence to the effect that her reading ability is limited and she has never written her residential address herself.  She said that her husband always described the address or explained it.  She never wrote it herself.  She was asked, during the course of her examination, to describe lettering that appeared on the outside of her premises.  She did so and returned to inform the Tribunal of the lettering that appeared.  She mentioned the wording, NO 44 EO as appearing, this the same as the lettering that is apparent on a photograph of premises more particularly identified by the witness, Mr Rendell.

Mr Chan, the Chief of Phom Sa Thmi 3, or District No 3, in his written statement which he affirmed as being correct, said that he first met Ms Chheung in the 1980s when she moved into his area.  He, seemingly, has the responsibility for registering people who reside in an area allocated to him for supervision.  He says he works for the Government.  There are about 130 families in his area which amounts to about 700 people.  He described the location of various streets, both major and minor, and gave evidence as to the way in which they are numbered and access that may be obtained to them.

He, as I have mentioned, knew and does know Ms Chheung.  He was able to identify the premises 44 EO on a small street number 51 which was behind, seemingly, the main street 51.  He said that he had been to her home in the course of his duty to distribute medicines and for registration purposes.  He identified Ms Chheung's address as being the same as that set forth in her migration application.  During the course of his cross-examination before the Tribunal he again identified the address of Ms Chheung and stated that he was aware that not only did Ms Chheung reside at those premises but also so did her husband and her four children whose dates of birth he was able to detail to the Tribunal from records that he maintained in his office.  The dates of birth except for the date in the month of one of them were in accord with the information set forth by Ms Chheung in her said application.

Mr Rendell, an Australian lawyer living in Cambodia and married to a Cambodian lady, said that he is able to speak conversational Khymer, his wife speaking fluent Khymer and good English.  He said that he had been requested by Mr Kessels to attempt to locate the address of Ms Chheung and was provided with a hand drawn map of the area where Ms Chheung claimed to live.  He, with his wife, went to the designated area and on 24 July 2002 located Ms Chheung at the address stated by her in her migration application.  He said he had not difficulty in finding the address and that he and his wife found the entrance to Ms Chheung's street which he then depicted and marked on photographs that were annexed to his statement, exhibit A in these proceedings.

He said that the house, number 44, and the street, number 51, are clearly depicted above the doorway at the front of the house.   Indeed it is the number 44 EO that so appears on the front of the house that was referred to by Ms Chheung in her evidence.  Mr Rendell spoke with Ms Chheung and her husband and confirmed to his satisfaction that she with her family was residing at the specified address.  He spoke to a lady who, seemingly, was passing by the house and that lady also confirmed that Ms Chheung live at the house number 44.  Mr Rendell otherwise described the area in which the house was located and the confusion that might arise when a person was unfamiliar with the area and endeavouring to locate a particular address.

In the course of his evidence before the Tribunal Mr Rendell having some familiarity with the city of Phnom Penh and having some familiarity with the numbering system did indicate that there are a number of streets with the same number and indeed it was common for streets to have the same number.  He said that the numbering could be confusing to a stranger and that people tended to write their house numbers on their houses themselves.  He said that most people would not know that a little street, such as that in which he found Ms Chheung, did in fact exist.  As he put it, "this is Cambodia and people put what they want on their house."  This would not assist in locating a particular address.  Indeed he said that in the subject instance there was not a street sign to indicate the existence of the little street in which Ms Chheung, he said, resided.

It was not put to Mr Chan or Mr Rendell on behalf of the respondent that there evidence was false or that they were incorrect in their evidence by reason of a misunderstanding of the factual circumstances.  There evidence is accepted by the Tribunal.

On behalf of the respondent Mr Cranwell stated at the conclusion of the hearing that he was not in a position to put submissions as to bad character on the part of Ms Chheung.  The Tribunal is appreciative of the candour shown by Mr Cranwell.  The evidence now before the Tribunal was not available to the delegate at the time the reviewable decision was made.  It may be thought that the difficulties being experienced by the respondent's officers and agents could have been brought to the attention of Ms Chheung and an indication obtained as to the location of her residence.

Nevertheless, the evidence now before the Tribunal leaves no room for doubt as to the residential address of Ms Chheung, the visa applicant.   She did not provide a false address to the respondent and she did not seek to mislead.  The respondent has not satisfied the Tribunal that Ms Chheung is not of good character.  The discretionary factors do not therefore warrant consideration.

For these reasons the decision under review is set aside.  The matter remitted to the respondent for further consideration with a direction that the visa applicant satisfies the character test.

RECORDED   :   NOT TRANSCRIBED