Chov and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 878

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 878

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   V2001/1473

GENERAL ADMINISTRATIVE   DIVISION		)
Re		EA CHOV

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC.,  (Deputy President)

Date5 September 2003

PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa not be refused under s501 of the Migration Act 1958.

[Sgd S P Estcourt]

Deputy President

CATCHWORDS

Immigration – subclass 309 spouse visa – whether applicant fails character test – false and misleading information – decision set aside.

Migration Act 1958 – s501

REASONS FOR DECISION

5 September 2003 Mr S P Estcourt QC.,  (Deputy President)        

1.      In this case the Tribunal finds in favour of Mrs Chov’s application to set aside the Minister’s decision to refuse a visa to her husband Sarim Pil to allow him to come from Cambodia to join her in Australia. 

2.      The reason for the decision in Mrs Chov’s favour is that all of the Minister’s concerns surrounding Mr Pil’s character have been satisfactorily answered and the Tribunal is satisfied that he is of good character. 

3.      On 14 December 1994, Mrs Chov’s entire family, including Mr Pil made an application to migrate to Australia.  As part of their application they were all required to undergo medical examinations.  Mr Pil had his medical examination on 6 December 1995.  On 12 March 1996, the Australian Embassy wrote to him advising him that he would have to undergo further examinations at the National Tuberculosis Institute and at the International Organisation for Migration.  Subsequently Mrs Chov advised the Embassy that her husband had been killed by the Khmer Rouge.  She and her children then migrated to Australia.  Later Mr Pil re‑appeared.

4. The respondent’s refusal of Mr Pil’s subsequent spouse visa application sponsored by Mrs Chov was on the basis that Mr Pil did not pass the character test posed by s501 of the Migration Act 1958 (“the Act”) because he together with his wife had provided false and misleading information to migration officials.

5.      The respondent’s refusal was based on three principal grounds.  They are:

(a)Mrs Chov and Mr Pil provided conflicting stories in relation to the timing of his purported capture and execution by the Khmer Rouge;

(b)Mrs Chov and Mr Pil gave differing accounts of how they were re‑united;

(c)Mrs Chov and Mr Pil provided a false address in their visa applications. 

6.      As to the first of these matters, the respondent points out that Mrs Chov claimed that Mr Pil had been killed on 30 March 1996 as evidenced by a death certificate and confirmation of death form lodged by her, but she later claimed in a statutory declaration sworn on 1 March 2001 that her husband had been killed on 1 June 1996 by the Khmer Rouge whilst out collecting wood.  By contrast it is said Mr Pil claimed that he had been captured by the Khmer Rouge in 1995 after he had attended for his medical examinations.

7.      The Tribunal accepts the accuracy of the respondent’s submissions in this regard and also notes that there was conflict between the details given by Mrs Chov and Mr Pil in oral evidence as to the time of his disappearance and the duration of his capture.  The Tribunal is however satisfied by the oral evidence of two key witnesses in Cambodia that the core facts surrounding Mr Pil’s capture by the Khmer Rouge, his escape and his return are true. 

8.      Khon Rouen is a General in the Special Force of the Cambodian Army and was an officer under whom Mr Pil served between 1983 and 1995.  General Rouen gave evidence that in February 1996 he was living in Posat in Battambong, near where Mr Pil was living when he was informed that Mr Pil had been captured by the Khmer Rouge whilst he was out looking for wood.  General Rouen sent troops to search for Mr Pil.  General Rouen gave evidence that it was not in December 1995 that Mr Pil was captured, because he records everything about people who are missing or injured and he recorded this disappearance in his book.  He said Mr Pil should have consulted him to get his record right before giving evidence.  General Rouen said:

“I knew he disappeared and when he returned, I record all of them.”

9.      As to his return, General Rouen says that it was in August 1997 when he was working in Phnom Penh that Mr Pil came to see him.  General Rouen said that after Mr Pil escaped from the Khmer Rouge, the first person he went to see was “Mom Leang” and that Mom Leang brought Mr Pil to General Rouen. 

10.     Mom Man who is the wife of Hai Leang, knew Mr Pil and Mrs Chov before Mrs Chov and the children left for Australia and she gave evidence that Mrs Chov left an Australian telephone number with her in the event that her husband might still be alive.  Mrs Man gave evidence that Mr Pil came to see her in 1997.  She was unable to recall the month or the day, but was able to say that soon after he came to her, she sent him to General Rouen.

11.     The Tribunal accepts the evidence of General Rouen and Mrs Man and accepts that the facts established by their evidence support the core version of events advanced by both Mrs Chov and Mr Pil.  The differences in the detail between Mrs Chov’s version and that of Mr Pil are explicable given the turmoil of all that was occurring around them and the provision of those details to migration authorities does not amount, given their circumstances, to the provision of false and misleading information. 

12.     The respondent’s second concern was that in Mrs Chov’s statutory declaration sworn on 1 March 2001, she claimed that in September 1996, her friend Hai Leang contacted her by telephone and advised her that Mr Pil was alive and living with him in Phnom Penh.  That is inconsistent, it is said, with Mrs Chov’s further claim that she first discovered that Mr Pil was alive through receiving a letter and a phone call from him one year after she arrived in Australia, being somewhere in mid 1997.  On the other hand, it is said Mr Pil claimed that he was informed in December 1997 by his “niece” that Mrs Chov was alive. 

13.     The Tribunal is not persuaded that these differing versions amount to the provision of false and misleading conduct, as opposed to the product of defective recollections.  Once again, the evidence of Mom Man, who is the wife of Hai Leang makes it clear that when Mr Pil reappeared in 1997 she arranged for phone contact between Mr Pil and Mrs Chov and also for a letter to be written to Mrs Chov.  That this was in about August 1997 is made clear by the evidence of General Rouen who recorded when Mr Pil reappeared and who saw him shortly after he went to see “Mom Leang”.  The Tribunal is satisfied that Mom Leang and Mom Man, the wife of Hai Leang, are the same person.  Further the term “niece” in the Khmer language does not necessarily involve a family relationship.

14.     The respondent’s third concern was that the address supplied by Mrs Chov and Mr Pil in their 1994 visa application was 30 EO Street 168, Group 34, Sangkat Orussey I Phnom Penh and that address was also listed as the current residential address for Mrs Chov as at 23 November 1994 in an undertaking form signed by Mrs Chov’s sponsor.  The respondent points out that Mr Pil claimed to have been living in Battambong Province in 1995 and 1996, from where he was captured by the Khmer Rouge and further in his current application, Mr Pil claimed that the family lived in Battambong Province from 1991 until June 1996. 

15.     The Tribunal is satisfied that the address given is not false, as the evidence of Mrs Chov, Mr Pil and their son Sarou Rim, when taken together, make it clear that the family lived in principally Battambong, that they stayed in Phnom Penh whilst awaiting migration to Australia with a person they referred to as their sponsor and whose address they used for official purposes and that Mr Pil continued to travel between Battambong and Phnom Penh as did the family from time to time.  Mr Pil travelled more often than the other members of the family in order to work and make money to support them while they were in Phnom Penh.

16.     One final matter which arose during the course of the Tribunal hearing and which might be said to affect Mrs Chov’s credibility was that it took her a very long time after she learned that her husband was still alive to make an application for a visa for him to join her in Australia.  As to that, the Tribunal accepts the genuineness of Mrs Chov’s evidence that she wanted her husband to join her, but she was not sure how to go about making the application.  It was not until later that she said she decided to go to the Cambodian Association for help.  Her evidence in this respect is consistent with that of her brother, Oung Chov, who told the Tribunal that he kept reminding her from time to time to sponsor her husband, but that she said that she didn’t speak good English or Cambodian so how could she do it.  Mr Chov who had sponsored his sister, told her that he himself did not have time to help her because he was working 12 hour shifts.  He told her that if she wanted to make an application to sponsor her husband, it was best to see the Cambodian Association.

17. There being in this case no suggestion that Mr Pil is not of good character, absent the migration misconduct alleged against him by the respondent, the Tribunal is satisfied that Mr Pil passes the character test posed by s501 of the Act.

18. The formal decision of the Tribunal is that the decision of the respondent’s delegate dated 26 October 2001 to refuse the grant of a subclass 309 spouse visa to Sarim Pil on the ground that he did not pass the character test within the meaning of s501 of the Migration Act 1958 is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds. 

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC.,  (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  4 November 2002 and 11 July 2003
Date of Decision  5 September 2003
Counsel for the Applicant         Ms Bunnary Soch
Solicitor for the Applicant          Cambodian Community Welfare Centre
Counsel for the Respondent     Mr Tony Fell
Solicitor for the Respondent     Australian Government Solicitor