Chhy and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 1140
•29 October 2002
DECISION AND EDITED ORAL REASONS FOR DECISION [2002] AATA 1140
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/531
GENERAL ADMINISTRATIVE DIVISION )
Re NEANG CHHY
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date29 October 2002
PlaceMelbourne
Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa application not be refused under s501 of the Migration Act 1958.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Immigration - spouse visa application - refusal of visa on character grounds - false and misleading conduct in dealings with immigration authorities - whether fails character test - Ministerial Direction No 21 - countervailing factors - decision to refuse set aside.
Goldie v The Minister for Immigration and Multicultural Affairs – FCA 1277 (14 September 1994)
Migration Act 1958 – s501
EDITED ORAL REASONS FOR DECISION
29 October 2002 Mr S P Estcourt QC., (Deputy President)
The visa applicant has been refused a spouse visa on the ground that he does not pass the character test. The review applicant is his wife.
In 1994 the visa applicant's mother, assisted by her sister, made two applications for entry into Australia under the Special Assistance Category program. The visa applicant was included in both applications under the name of Taing Fann and with the date of birth 14 October 1975. The visa applicant signed both applications although they were in English and he did not understand English at that time. Both applications for entry into Australia were refused because the cap on successful applications had been reached.
On 28 April 2001 the visa applicant married the review applicant. It is conceded that the marriage is a genuine one.
On 16 May 2001 the visa applicant made the present application under the name Vann San and with the date of birth 1 November 1975. The uncontradicted evidence of the visa applicant is that he lived with his uncle after his family fled the Khmer Rouge and that his uncle gave him his own family name, Vann, and subsequently enrolled him at school with the birth date 1 November. The visa applicant's original birth records no longer exist, having been lost or destroyed during the Pol Pot regime.
The visa applicant has used the name of Vann San and the birth date of 1 November ever since and it follows that in my view the use of those particulars in the spouse visa application was not in any relevant sense false or misleading of itself. (I pause to observe that there could be no advantage to the visa applicant in using the name Vann San and the date of birth 1 November when his application clearly showed the correct birth names of his parents and his siblings, immediately drawing attention to the fact that his own birth name should have been Taing and that he would undoubtedly have been known by a previous name, that is his birth name).
In those circumstances I do not regard the provision of a birth certificate in support of the visa application, showing the date of birth 1 November, as false or misleading in a relevant sense.
In his visa application the visa applicant answered "no" to question 6, which asked:
"Have you or any other person included in this application ever been refused an entry permit or visa in Australia?" (my emphasis)
Leaving aside the fact that the answer is literally quite true, the visa applicant's explanation for answering "no" and for some answers he gave at interview in Phnom Penh in relation to his application, was that he had difficulty with the meaning of the word "visa" and that his mother had told him that the earlier applications were applications "to come and live in Australia". I do not find that explanation unconvincing at all in view of the special nature of the Special Assistance Category program. I do not, therefore, find the answer to that question to be false or misleading.
At interview in Phnom Penh the visa applicant was asked:
"Have you ever applied for a visa for Australia under a different identity?"
He answered "no".
When he was shown an earlier Special Assistance Program application he answered that he didn't know about that, that his parents had lodged the application and that he signed it, but didn't understand the contents because he didn't speak English. He also said that he had forgotten about his birth name because it was so long ago.
The interviewing officer did not believe those answers to constitute the whole truth and neither did I when he repeated them to me in answer to my questions today.
In my view, the visa applicant was obfuscating, (not telling the whole truth) when he gave those answers, and the real truth of the matter is probably that he did not wish to muddy the waters of his present application with previous applications which were unsuccessful
The tragedy of this case is that the visa applicant had nothing to hide at all and had he answered with complete candour the questions he was asked on interview, he would never have found himself in the position he is now in.
The question for me is whether his reluctance to answer when confronted with questions on interview, and whether his eventual answers which are lacking in credibility, amount to false or misleading statements in connection with a visa application which under Ministerial Direction No 21 would in the absence of countervailing factors result in a failure to pass the character test.
I do not think, to paraphrase the words of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs, FCA 1277 (14 September 1994) @ paras. 5-7, that the visa applicant's unimpressive performance at interview in Phnom Penh demonstrates that his character is bad in the sense that his enduring moral qualities are so deficient that it is for the public good to refuse him entry into Australia.
In making that judgment I take into account, firstly, that the migration case officer was possessed of the fact of the previous Special Assistance Category applications at the outset of the interview and could have asked the visa applicant about them immediately, thus obviating any opportunity for the visa applicant to obfuscate, (to tell less than the whole truth).
Secondly, the visa applicant did not speak English at the time of the 1994 applicants.
Thirdly, there is room for a legitimate distinction to be drawn in anyone's mind between the words "a visa for Australia" and the applications under the Special Assistance Program.
Fourthly, the visa applicant was asked about "a different identity" where his answer to later questions on that interview show that he regarded his true identity as Vann San, thus distinguishing between his identity and his family name of Taing.
Fifthly, one can speculate with some confidence, in my judgment, that had the visa applicant been asked, "Have you ever signed an application to come to Australia under your family name of Taing Fann?" his answer would have been "yes".
Finally, the circumstances themselves in which the visa applicant adopted a new name and birth date were not sinister but a matter of survival during the Pol Pot regime.
If I am wrong in my judgment about Mr Vann's answers on interview, that they are not false or misleading, or not such as themselves to show that his enduring moral qualities are such that he should be refused entry into Australia, then all the reasons I have listed above in my view amount to "countervailing factors" within the meaning of Ministerial Direction No 21 and would militate against the finding that the visa applicant is not of good character.
I find the review applicant to be a witness of the truth and I accept her evidence that she does not believe that the visa applicant ever mentioned to her his previous applications. I do not consider the visa applicant's reference on interview to having done so alters the view I have reached about his character.
Now, if I were wrong as to all these matters I would exercise my residual discretion in favour of the visa applicant on the basis, firstly, of the review applicant's compassionate claims as an Australian citizen genuinely married to someone about whom she had no knowledge of any migration character concerns, (if indeed there were any at the time she married the visa applicant).
Secondly, on the basis of the best interests of the review applicant's son, Goohfee, who is obviously attached to the visa applicant such as to have wanted to live with him in Cambodia for the last 12 months or so.
Thirdly, on the basis of the disruption to the review applicant's family unit if she were required to give up her country and return to live in Cambodia.
Finally, on the basis that I would not be troubled on the facts of this case about recidivism or general deterrence. (The seriousness and nature of the conduct in this case would on any view be very much at the lower end of the scale).
It follows that for the reasons I have given, the decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa application not be refused under s501 of the Migration Act 1958.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: .....................................................................................
Administrative AssistantDate/s of Hearing 29 October 2002
Date of Decision 29 October 2002
Counsel for the Applicant Miss Chan Skeng
Solicitor for the Applicant
Counsel for the Respondent Mr A Fell
Solicitor for the Respondent Australian Government Solicitors
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