Chim and Department of Immigration and Multicultural Affairs - [2001] AATA 484

DECISION AND REASONS FOR DECISION [2001] AATA 484

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/485

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ALISA CHIM
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon. C R Wright Q.C., Deputy President

Date5 June 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
   [The Hon C R Wright QC]
  Deputy President
CATCHWORDS
Immigration – spouse visa – refusal of visa – whether person not of good character – false and misleading documents – hardship to applicant – discretionary consideration - decision affirmed.
Migration Act 1958 – s.501
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR @ 156

Re Renata and Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157
Aksu v Minister for Immigration and Multicultural Affairs (2001) FCA 514

REASONS FOR DECISION

5 June 2001 The Hon. C.R. Wright Q.C., Deputy President

The applicant for review was born in Cambodia on 1 February 1976. She arrived in Australia on 15 August 1992 and was granted citizenship on 30 November 1994. She lives at Springvale in Victoria and is employed as a process worker.
She lived with her grandmother in Cambodia until she was about 16 years of age.
Following the Vietnamese invasion of Cambodia in 1979 her father fled to Thailand in 1980 and then to Australia in 1982. Her mother died in 1980. The applicant did not see her father again until she too came to Australia in 1992.
Her employment is stable and seems secure. Her close family all live in this country. Her father has remarried and she plays a major role in caring for her stepmother's parents. The applicant owns a home unit in Victoria Avenue, but lives with her stepmother's parents in their unit nearby. They are both reliant upon her to assist them with shopping and transport. She possesses her own motor vehicle. They have chronic ailments which require regular medical attention. The applicant takes them to and from the doctors when required. The applicant's father and stepmother also live nearby. She has a close and affectionate relationship with both of them.
The applicant is married to and is the sponsor of the visa applicant Vandy Leng. She and Leng lived in the same village before she came to Australia. They are first cousins. They went to school together, fell in love and before coming to Australia she promised him that when she finished her education and got a job she would return and marry him. This she did in January 1998.
It is their intention, if the present review is successful, that Vandy Leng will join his wife in Australia and they will live together in her unit at Springvale. Leng is presently living in Cambodia where he works as a school teacher and also as a furniture sales assistant. The applicant claims that if Leng comes to live in this country he "would not be on any social welfare benefits as we are able to live off my income … I do not think we would need government assistance."
With this brief description of personal history of the applicant and visa applicant I turn to consider the present problem.
On 6 April 1994, the visa applicant lodged an application for a Sub-class 214 Special Assistance Category (SAC) visa in the name of Leng Van Dy, date of birth 1 May 1969. This application, which was sponsored by his uncle Chim Sun Heng, was subsequently refused.
On 30 December 1997, the visa applicant lodged an application for a Sub-class 300 Prospective Spouse Visa in the name of Leng Vanny, date of birth 1 July 1966. This application was refused as the applicant had already married his sponsor, Chim Alisa on 4 January 1998 and was therefore no longer able to meet the Schedule 2 criteria for grant of a Sub-class 200 visa. The applicant was subsequently invited to lodge a free second application under Sub-class 09 Provisional Spouse visa. This was lodged on 28 August 1998 again in the name of Leng Vanny, date of birth 1 July 1966.
In the course of processing Mr. Leng's application he was interviewed at the Australian Embassy at Phnom Penh on 11 August 1999 and again on 28 March 2000. During the course of the second interview, the visa applicant admitted that he knowingly applied for a permanent visa to Australia on false grounds by submitting an application for a spouse visa and supporting documentation which he knew contained information relating to his identity, family composition, and biological relationship to his spouse, which was false. He admitted that he lodged this application containing false information to avoid his earlier Special Assistance vis application being detected by immigration officials. He also admitted that he knowingly pursued his Spouse Application through all stages of the process up until the second interview knowing the same to have been based on false information.
At the second interview, the visa applicant acknowledged that he purposely changed his identity on the advice of a fortune teller to avoid being matched with his previous application. It is plain enough having heard the evidence of both the applicant and visa applicant during the course of the present proceedings that they were wrongly advised by a number of unidentified people in Cambodia, that once an application had been made for a visa, which was refused, a second application by the same person would not succeed. They were also advised that an application in a different name would be more likely to be successful.
The applicant and the visa applicant consulted a fortune teller as to the appropriate name to use when making a new application. There is a conflict of evidence between them as to whether or not the name "Vanny" Leng was chosen by them or suggested by the fortune teller. It was submitted that this and other inconsistencies in their evidence tended to suggest that they were both still lying about relevant matters. But I am not convinced this is so. It is some time since the relevant conversations occurred, and it is common experience that after a period of years memories about events, even important events, will differ in emphasis, if not substance. At all events acting upon advice from members of the Cambodian community and adopting the remarkably unimaginative name of Vanny Leng, instead of Vandy Leng, false papers were procured, consisting of a family book, Cambodian identity card, birth certificate and marriage certificate (the marriage had taken place between the applicant and the visa applicant in Cambodia on 4 January 1998, and for the purposes of that ceremony and in anticipation of making the false application, Leng had used the name Vanny Leng). During the course of his second interview, the visa applicant confessed that he knew that the details of his application were false, and that it was unlawful to make false or misleading statements for the purpose of obtaining a visa.
The applicant, Alisa Chim, had earlier written a letter to the senior migration officer at Phnom Penh on 27 September 1999 in which she admitted complicity in the deception and set forth facts and circumstances intended to explain their fraudulent conduct.
A Minister's delegate in Phnom Penh considered the visa application and basing his decision upon a finding that the visa applicant failed the character test provided by s.501 of the Migration Act 1958 ("the Act") and deciding further that discretion should not be exercised in the visa applicant's favour, he refused to grant the visa sought. It is against that decision that the present application for review has been instituted.
It is plain, I think, regardless of the motives of the visa applicant and his bride, that they both participated in the formulation and advancement of a fraudulent course of conduct designed to hoodwink the immigration authorities.
At his first interview, the visa applicant sought to maintain to his false identity and circumstances, and even in the course of giving his evidence by telephone from Cambodia, during these proceedings, it was apparent to me that he was attempting to minimise his culpability in respect of the fraudulent plan by telling untruths. To echo the words of Deputy President McMahon in Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 @ 156 "Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld."
Both the visa applicant and applicant profess contrition and remorse for the falsehoods to which they have been party and although having seen and heard her in person, I am satisfied that the applicant is unlikely to offend again, I am by no means so confident with respect to the visa applicant. These were no mere slips or minor falsehoods. The documents submitted to the migration authorities were corruptly obtained and cost the applicant and visa applicant a sum in excess of $1,000 Australian dollars. It is plain from their evidence that such corruption is viewed as commonplace in Cambodia and it is apparent that if the visa applicant fails to secure entry to this country as a consequence of his deception having been exposed, this may have some general deterrent value in the wider Cambodian community.
As illustrated in the decision of Lachmaiya (supra), Renata and Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157 and numerous more recent decisions recently referred to by me in the case Tuipulotu, sustained lying to subvert the administration of immigration procedures will almost inevitably lead to a finding that the perpetrator is not a person of good character within the meaning of s.501 of the Act. That is the conclusion which I have come to in respect of the visa applicant. The question remains whether or not in the exercise of a discretion this application should be granted.
Despite doubts recently cast upon the validity of certain aspects of the Minister's Direction No. 17 under s.499 of the Act by the decision of Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (2001) FCA 514, it is apparent to me that the substance of those directions should be applied by this Tribunal. Whilst having regard to the primary and secondary considerations enumerated by the Minister, I am conscious of the comments made by Dowsett J to the effect that if applied literally in accordance with the Minister's direction those considerations would have the effect of illegitimately fettering a discretion under s.501. I will therefore take cognisance of the primary and secondary considerations as guide rather than mandatory directions, an approach which I think is consistent with the concluding sentence of paragraph 2.2 of the Minister's Direction which makes it clear that decision-makers should adopt a balancing process and take into account all relevant considerations before reaching their decisions.
The primary considerations relevant to the present application are (a) the protection of the Australian community and (b) the expectations of the Australian community. The meaning of these phrases has been debated on many occasions.
I have already mentioned the aspects of general deterrence, but I think it fair to say that I do not regard the applicant or the visa applicant as constituting a threat to the Australian community, although as I have already observed, the visa applicant does not convince me that he is unlikely to engage in deceptive conduct if he sees such conduct as advancing his interests in the future. It is trite that the Australian community expects non-citizens to obey Australian laws and that applicants for entry to this country will be open and honest with migration officials in pursuing their applications. As I have already observed the visa applicant's course of conduct was calculated and sustained over a substantial period of time in complicity with the applicant.
The Minister's Direction also enjoins decision-makers to take account of other matters enumerated in paragraph 2.17.
There is no present suggestion that the marriage between the applicant and visa applicant is other than a genuine marriage, notwithstanding any legal issue which may arise from the fact that the visa applicant was married using a false name. If he is not permitted to come to Australia, I think substantial hardship will be caused to the applicant. Having observed her closely whilst giving evidence, I have no doubt that she loves her husband dearly and seeks to be reunited with him. If he is prevented from coming to this country her only option would appear to be to return to Cambodia. She has already endured many hardships in that country and was deprived of the society of her family, other than her grandmother, for many years as a consequence of the turmoil in that country. After living for many years in Australia, being educated here and having secured employment in which she is highly regarded and apparently well paid, I think it would be a considerable hardship to her to have to return to Cambodia. In my opinion, if she did so, she may well have difficulty in obtaining employment and establishing a feeling of safety and security. These issues have obviously weighed upon her mind, and she has had psychiatric attention for anxiety, stress and depression. Her treating doctor, Dr. Peter Pereira, in his report dated 30 June 2000 says:
"This is secondary to the strain from the uncertainty of not having her husband with her in Melbourne."
Australia owes no international obligation to Mr. Leng who is a Cambodian national.
Notwithstanding the applicant's participation in the sustained course of deceptive conduct already described, I feel a great deal of sympathy for her predicament. She is an Australian citizen and has a settled and rewarding life with her supportive family in this country. In reality her husband had no reason to fear that a second visa application in his true name would be unsuccessful. They were both very badly advised. There is nothing in the evidence to suggest that either of them had participated in other conduct which would justify a finding that they are of bad character.
I have given this matter careful and anxious consideration and have concluded, not without some initial hesitation, that it would be inconsistent with principle and precedent, to allow sentiment to dictate the outcome of these proceedings.   There is room for compassion in all cases such as this, as evidenced by the decision of Deputy President Forrest in Ngor (also known as Yeng) and Minister for Immigration and Multicultural Affairs (4 May 2000) AATA 353. Although it is sometimes dangerous to compare superficially similar cases it is noteworthy in Ngor's case, Deputy President Forrest placed considerable weight on the wellbeing of the applicant's 14 year old son.   There are no children of the applicant and visa applicant in the present case.   I have concluded that the appropriate decision in the present matter is to affirm the decision under review.    That is the order which I now make.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C. R. Wright
QC., Deputy President
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  24 April and 3 May 2001
Date of Decision  5 June 2001
Counsel for the Applicant        Mr Gilbert
Solicitor for the Applicant          Acquaro & Co
Counsel for the Respondent    Ms J Davis
Solicitor for the Respondent    Australian Gov. Solicitors