Copeland and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 144
•16 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 144
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/983
GENERAL ADMININSTRATIVE DIVISION ) Re SCOTT ANTHONY COPELAND Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J. Block Date16 February 2005
PlaceSydney
Decision The decision under review is affirmed. ..............................................
Deputy President
CATCHWORDS
Application for spouse (provisional) visa – concession that character test failed – genuineness of marriage conceded – consideration of discretion contained in Direction 21 – decision affirmed
Migration Act 1958 s. 501
Silva and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 27
El Chaar and Minister for Immigration and Multicultural Affairs [2001] AATA 720
Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029
Hossain and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 315
Reng Sheng Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004[] AATA 828
Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438
REASONS FOR DECISION
February 2005 Deputy President J. Block Part A Introduction And General
1. The decision which is under review is the refusal dated 13 July 2004 by a delegate of the Respondent of an application for a spouse (provisional) (subclass S309) visa applied for 10 January 2003 by Somjit Copeland (“the Visa Applicant”) ; who was sponsored by the Visa Applicant’s husband, Scott Anthony Copeland, who is the Applicant in these proceedings.
2. The Applicant was represented by Mr S Henry, a solicitor of Sterling Henry Migration Services while the Respondent was represented by Mr A Chand of Clayton Utz, solicitors. The Tribunal had before it the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows: -
·Exhibit A1 is a statement (in the form of questions and answers) dated 17 December 2004 by the Visa Applicant
·Exhibit A2 refers to four overseas transfers of money by the Applicant to the Visa Applicant
·Exhibit A3 is a report dated 10 November 2004 by Dr R Schureck
·Exhibit A4 is a statutory declaration dated 10 December 2004 by the Applicant
·Exhibit A5 relates to postmarked envelopes as to correspondence from the Visa Applicant to the Applicant and also evidence of travel to and in Thailand in December 2003 and January 2004
3. The Respondent’s Statement of Facts and Contentions dated 10 November 2004 commences with the usual (helpful) chronology of events; that chronology of events under the heading ‘Facts’ reads as follows:
FACTS
16 October 1965
Mr Scott Copeland ("review applicant") was born in Australia (T5, p 103)
4 November 1971
Ms Somjit Konwong (aka Ms Yenjit Konwong and Somjit Copeland) ("visa applicant") was born in Thailand (T5, p 55)
1994
The visa applicant travelled to Taiwan on her own passport in order to work (T13, p 225)
1996
The visa applicant returned to Thailand from Taiwan (T13, p 225)
The visa applicant used her own photo and her sister's identification to apply for a passport in her sister's name (Yenjit Konwong), in order to travel to Taiwan for a second time to work. The visa applicant was unsuccessful in obtaining a Taiwanese visa, so she paid a third party to arrange her Australian visa (T13, p 228)
3 May 1997
The visa applicant used the passport in her sister's name and travelled to Australia on a visitor visa valid for 3 months (T20, p 270). The visa applicant stayed in Australia unlawfully for a period of almost 5 years.
The visa applicant worked as a babysitter (T13, p 225) and then commenced working at the Terrigal Thai Restaurant. The owner of the restaurant stole her passport and jewellery (T5, p 116)
The visa applicant ran away from the Terrigal Thai Restaurant and went to the Thai Consulate, where she was advised to get her passport. She could not go back for her passport and began to work at the Urban Thai food shop (T13, p 226)
February 2002
The applicants met through a mutual friend at the review applicant's home and their relationship commenced. Shortly after, the visa applicant moved in with the review applicant (T5, p 114)
18 May 2002
The visa applicant was located by officers of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") at the review applicant's home and was detained. The visa applicant continued to use the name Yenjit in her dealings with DIMIA officers (T13, p 230). She was released from detention on a bond and continued to live with the review applicant until her departure (T13, p 226)
17 July 2002
The visa applicant departed Thailand on a bridging visa (T20, p 271)
29 November 2002
The review applicant departed Australia for Thailand (T5, p 114)
13 December 2002
The applicants registered their marriage in Thailand (T5, p 146)
31 January 2003
The visa applicant's agent sent the visa applicant's application for a provisional spouse (subclass 309) visa ("Visa") to the Australian embassy, Bangkok ("Embassy") (T5, p 49)
4 February 2003
The review applicant returned to Australia from Thailand (T5, p 146)
28 March 2003
The visa applicant attended an interview at the Embassy (T13, p 225)
3 September 2003
The visa applicant attended another interview at the Embassy (T13, p 228)
15 November 2003
The Embassy wrote to the visa applicant providing notice that her application may be liable to refusal under section 501 of the Migration Act 1958 ("Act") (T14, p 235)
12 July 2004
The Visa application was refused by a delegate of the respondent (T2, p 5)
2 August 2004
The review applicant applied to the Administrative Appeals Tribunal ("Tribunal") for review of the decision (T1, p 3)
4. If only as a matter of balance I include the content of the Applicant’s Statement of Facts and Contentions under the head of ‘Facts’, and reading as follows:
“FACTS
Date Event
………….Visitor visa subclass 686 issued to “Yenjit Kongwong” by Australian Embassy Bangkok valid for 3 month stay (T5, f91).
03/05/1997 “Yenjit Kongwong” (actually Somjit Kongwong, now Somjit Copeland) arrived in Australia. (T2, f8).
03/08/1997 3 month tourist visa expires (T2, f11)
18/06/2002Visa applicant detained at Scott Copeland’s residence at, Stanhope Gardens and escorted to Villawood Immigration Detention Centre (FOI, f17)
24/06/2002 Lodged application for bridging visa E.
27/06/2002Granted bridging visa E and released from detention on lodgment of $20,000 surety (FOI, f69-73)
17/07/2002 Visa applicant departed Australia (T2,f8).
02/12/2002 Visa applicant and Scott Copeland married in Thailand (T5,f104-111)
10/01/2003Applicant’s provisional spouse visa lodged with the Australian Embassy Bangkok (T2, f5). Registered on 05/02/2003.
28/03/2003 Visa applicant interviewed at Australian Embassy (T13, f223-227)
03/09/2003 Second interview Australian Embassy (T13, f228-231)
15/11/2003Embassy wrote to Ms Copeland advising that the application may be liable to refusal under section 501 of the Migration Act and invites further information.
13/01/2004 Agent response to above request on behalf of client (T16, f239-242)
12/07/2004Decision by DIMIA delegate to refuse spouse visa application due to failure to pass the character test. (T2, f18)”
5. The Applicant’s Statement of Facts and Contentions referred to in the preceding clause was accompanied by a number of documents and including a document entitled ‘Lodgment of Security by Guarantor’ dated 27 June 2002 and pursuant to which the Applicant lodged security of $20,000 in consideration of the grant of a bridging visa to Yenjit KongWong (“Yenjit”), the bridging visa itself issued to Yenjit and a report outlining the circumstances in which the Visa Applicant known as “Yenjit” was detained and subsequently placed in detention; that report reads as follows:
“Door opened by Australian Citizen later identified as Scott Copeland b 16/10/65. Search warrant executed ID produced for all officers, copy of warrant provided to him. Mr Copeland had a large dog with him and was asked to restrain the dog and allow entry to the officers. He did so, but then stated that he would not allow his premises to be searched until he had read the warrant and been provided with a copy of the relevant subsections of the Migration Act. Search Warrant powers and reason for visit were explained by Officer Moran. Mr Copeland still insisted that he would not allow a search to be conducted. Officer Graham Campbell then telephoned (while still on route to the premises), he spoke to Mr Copeland and re-iterated our statements regarding the Search Warrant powers. Mr Copeland then allowed Officers to search the premises. Officer Kelly located a THAI female hiding behind the ensuite door. She was escorted into the living room and asked for ppt, name and DOB. She gave me her first name as Yenjit and claimed she needed an interpreter. I called TIS and obtained a THAI interpreter. The female then supplied her name and DOB, which matched the POI’s details. I informed her that her 676 visa had ceased on 3/8/97, she then admitted that she was a UNC. I detained the POI under s189 at 22.05hrs and allowed her to pack a bag. The POI then provided me with a photocopy of her ppt, she stated the original was at a friend’s place at Tuggaruh. Officer Moran then spoke to Mr Copeland in relation to harbouring Unlawfuls and left his card with him. Mr Copeland was advised of where the POI was being taken and how to contact her. Mr Copeland asked “who had dobbed her in” he was advised that we could not release that information. As we were escorting the Detainee to the Vehicle Officer Campbell and Feil arrived. The Detainee was then escorted to the VIDC. Out 22.18”
6. It may be noted by way of preliminary comment that Mr Henry (correctly) conceded that the Visa Applicant could not pass the character test. Mr Chand in turn accepted that there is no issue as to the genuineness of the marriage. Mr Chand also accepted that Exhibit A3 could be accepted and that Dr Schureck would not be required for cross-examination.
7. Oral evidence was given only by the Visa Applicant and the Applicant and in the case of the Visa Applicant by telephone link to Thailand, and with the aid of an interpreter in the Thai language.
8. I kept notes of the evidence given throughout the hearing. Quoted parts of the evidence contained in these reasons are taken from my notes, which while they may not accord exactly with the evidence as recorded in the transcript, will not differ materially.
PART B – THE EVIDENCE OF THE VISA APPLICANT; EVIDENCE IN CHIEF
9. At the commencement of her evidence, Mr Henry emphasized to the Visa Applicant that it was important that her evidence before the Tribunal be truthful. This occurred immediately after she had taken the affirmation. The Visa Applicant commenced by confirming the correctness of Exhibit A1.
10. The Visa Applicant is currently living with her brother in Bat Liew which is a village in Thailand about a half an hour or an hour in travel time from Bangkok. She is working in the assembly line of an electronics factory and where she receives 140 baht per day. (It may be accepted that the exchange rate between the baht and the Australian dollar is in the region to 30 baht to the $A.)
11. The Visa Applicant came to Australian in 1997 and using for this purpose a false passport issued to her sister Yenjit (“Yenjit”) but containing her own photograph and similarly a false Australian visa again issued to Yenjit. She said that an agent (afterwards identified only as Gunya and referred in these reasons as “the agent”) procured the false documents for her. When asked why she did not travel to Australia honestly and on her own passport, her answer was that she was in fact seeking documents to travel to Taiwan and did not think that she was going to Australia.
12. When asked whether she had stopped to think that she could have obtained a visa herself and her own passport her answer was “my agent took care of everything”.
13. It was put to the Visa Applicant that she said at an interview at the Australian embassy at Thailand that she paid the agent 130,000 baht, 80,000 in respect of Taiwan and a further 50,000 in respect of Australia, and she was asked whether the agent told her what these amounts were for. Her answer was that she was not sure what the agent did with her money. And when asked whether the agent needed any of the money to pay someone in authority her answer was “I am not sure – he didn’t tell me”.
14. When asked why her sister Yenjit could obtain documents for Australia but not she, the Visa Applicant, her answer was “I had been to Taiwan once and I wanted to go a second time but the agent said I couldn’t go and the agent said he would organise this passport”.
And then when asked why she could not go back to Taiwan she said “the company in Bangkok said it was only good for one travel but the agent said that it I had this passport I could go again.”
(It may be noted that in the beginning the agent was sometimes referred to in a form which would indicate the masculine and sometimes in a form which would indicate the feminine; the interpreter explained that in fact the agent is a female and that the Thai language is such that there are not different terms for this purpose.)
15. The Visa Applicant’s evidence was that she had previously gone to Taiwan on her own passport and where she lived and worked for two years. She was part of a group who worked for the same company in Taiwan. She did not overstay that visa in Taiwan; when her contract in Taiwan ended she returned to Thailand.
16. When asked whether her family were involved in the procurement of the false documentation she said that “my family knew”. However, they did not provide financial help; she obtained a loan from “someone I knew in the village” and who was identified only by her nickname, Pin.
17. The Visa Applicant said that her family’s attitude was that she should not use her sister’s identity and passport; however the agent said that she could do so. Her sister Yenjit (who is married with children) and whose identity she used said that she should not believe the agent. She went on to say “she says the same thing now. If I hadn’t used the agent I wouldn’t be separated”.
18. When asked why she was interested in Australia the Visa Applicant replied “I wanted to go to Taiwan but I couldn’t go there and the agent took me to Australia.” She went on to say “I just had to get on the plane”. She said that there was a group of people, four, five or six, all of whom boarded the same plane in Bangkok as part of a group and that they were accompanied on the flight by the agent.
19. On her arrival in Sydney “they took me to meet older sister Dang” (the reference to an older sister is purely a polite method of address in relation to Dang; this applies also to references to “Aunt Dang” because she is not a relative. She is referred to in these reasons as “Dang”).
20. After a brief period in Dang’s home and where the Visa Applicant sometimes looked after Dang’s children she was taken to met Aunt Dtoy (here again the Aunt reference is a courtesy title; this lady is referred to in these reasons as “Dtoy”)
21. Dtoy took the Visa Applicant to her restaurant in Terrigal and where she worked for the next three years.
22. It is relevant to note that the Visa Applicant was born in 1973; she was 24 in 1996 when she returned from Taiwan and 25 when she went to Australia. She said that she completed grade six at school which apparently means that she completed primary school (but not high school) and when she was about 13. She then helped her parents, sometimes in the rice fields and sometimes “selling goods”. When she was 18 she moved to Bangkok where she worked in a factory which made brushes. That job lasted for four to five years and was followed by her two year contract in Taiwan and where she worked in electronics. On her return from Taiwan she worked for her parents again “and just waited for a visa from my agent”. Exhibit A1 refers to her running her own restaurant but this occurred after her return from Australia. Exhibit A1 reads as follows:
“Translated Questions for Ms Somjit Copeland
1.What is your present residential address?
5, Village No.2, Wang Chomphu Sub-district, Phon Charoen District, Nong Khai Province, Thailand.
2.Are you staying with other people? If yes, please give details.
Presently, I am working in Bangkok and staying with my niece and Duean. My husband also sent 60,000 baht to me.
3.What are the occupations of your parents, sisters and brother who live in Thailand?
My three elder sisters operate private businesses at their own homes. One elder brother is a policeman.
4.Did your relatives attend your wedding ceremony? If not, why?
All my relatives including the villagers attended my wedding.
5.Do you have a close relationship with your family members? Please give details.
Yes, I have a close relationship with my family members.
6.From what school did you graduate? What academic level?
I was graduated from Ban Wang Yao School at Grade 6 of elementary education.
7.After graduation, have you attended any other training courses? Please write down the details.
No, I have not.
8.When did you tell the truth about your migration status to Scott Copeland?
I told the truth to my husband before I was arrested. I told him some time after we were living together at his home.
9.How long have you been working in the present employment? What kind of job is it? What are you doing (position)?
In the beginning I opened my own restaurant but due to lack of assistance I felt very tired, therefore I sold the restaurant to the other people. I started to work as a TV mechanic earning a salary of 4,400 but had to stand for 8 hours everyday. I could not endure the long hours of standing and I resigned when I got a new job at a company named Tomi.
10.You said that you used Yenjits passport to enter Taiwan and stayed there again. Why didn’t you use your own passport to enter Australia instead of Yenjit’s?
Because the agent told me that it was alright and they will take care of it for me, therefore I obeyed them because I was ignorant about this matter.
11.You know that your tourist visa was valid for 3 months and it prohibits working in Australia. Please explain why you were working here and did not try to leave Australia until you were arrested.
How could I return since I could not go anywhere. I could not leave, neither could I speak English. My passport was held by my employer. I had no idea of what to do.
12.Why didn’t you apply for the tourist visa directly by yourself instead of relying on an agent?
Because I had no experience of how to apply for a visa. Therefore I had to rely on the agent and obey them.
13.Is the agent, who arranged the visa for you, also involved in overseas employment including in Taiwan or involved with illegal immigration such as assisting people sneaking into other countries?
I do not know.
14.Did the agent know the true details about you when they assisted you in applying for an Australian visa?
I do not know because I never knew them before.
15.How much money did you earn from each job in Australia? (please clarify). Did you have any other income?
Working at the restaurant earned $250/week. Working for the cleaning job earned A$50 or sometimes A$80/week. No other income.
16.Did you save some money while working in Australia? If yes, what did you do with it?
I kept the money to pay-off my debts and the interests that I borrowed for going to Australia and also paid for my mothers hospital bills.
17.Do you regret having offended Australian Immigration Law?
Yes, I feel extremely regretful and the offence was due to my ignorance. I am suffering the torments of separation from my husband, while actually we should be living happily and warmly as a family and enjoy my married life.
18.What is your religion if any? How often do you attend worship?
I am a Buddhist. I attend the worship 2-3 each year, dependant upon the opportunities.
19.Have you ever performed any good deeds such as donations to charity, to sick people or disabled people? If yes please give details.
I have donated blood at Sirirai Hospital in Bangkok.
20.I understand that Scott gave you some money for an operation. Where did the operation take place?
My husband sent me 60,000 baht for my treatment. I never thought that my husband could ever fail to send money because during the time I lived with him (Scott), I felt assured that this man could take care of me and can be a good father to my children. We want to build up a good future and a good family and therefore I never had any thought that he would not send money. The operation took place at Phon Charoen Hospital.
21.Do you have any insurance in Thailand of which you can reimburse the medical expenses?
None.
22.How often do you contact Scott, and how do you contact each other at present?
I contact my husband almost everyday and every week, we communicate through telephone, and sometimes by postcards, letters and SMS.
23.Do you have any other information that might assist you?
I have nothing to say more because all that I said are true and correct. I know that I have offended the Australian law due to my ignorance and it causes serious problems of separation from my husband which is tormenting for both sides. I am pleading to you and all the Australian legal officers to be sympathetic with this spouse and give one more chance for the Copeland family. Thank you.”
23. After about three years in Terrigal with Dtoy, she returned to Sydney where she worked at the Urban Thai Restaurant. When asked whether Dtoy had any means of restraining her, she said “she didn’t want security but she took my passport and gold jewellery. I don’t know – she didn’t want me to go home.”
And when asked whether Dtoy spoke to her about her visa and her status she said “she did talk about it and told me she would help me”.
24. When asked whether she knew that she had come to Australia as a tourist, her answer was “I didn’t know how long I could stay here”. Dtoy did say that “I could work and that I could use the visa for work and that she would help make everything legal. I couldn’t read English and I had to rely on her”. The Visa Applicant went on the say that she tried twice to get her passport and jewellery back but was unsuccessful. The Applicant was also unsuccessful when he made an attempt to procure the return of the passport but he did obtain “the return of her jewellery”.
25. The T documents at page 83 sets out the Visa Applicant’s work experience and shows a period spent as a dental assistant but which was not mentioned in her oral evidence.
26. The Visa Applicant worked at Urban Thai for about three to four months and then did cleaning on a periodic basis. She met the Applicant while working at Urban Thai; he was a friend of Wannee who is also a friend of the Visa Applicant. She started going out with the Applicant and after six weeks moved in with him. She said that after moving in with the Applicant marriage was discussed and “he asked to look at my passport”. She told him that it had been taken from her and was with Dtoy in Terrigal. When told that her passport was irregular “[the Applicant] told me to wait and we would go to Thailand and get married at Christmas”.
27. When asked whether while living with the Applicant she thought that she was legally in Australia she answered “I thought I was here legally because I can’t speak English so well and I can’t read English”. And when asked by the Tribunal whether it was being asked to believe that she considered that she was legally in Australia and entitled to work in Australia she answered “I didn’t know Australia and I didn’t know Australian law”. And then asked whether she was drawing a distinction between a passport and a visa she answered “I didn’t know anything about passports and visas – I do whatever I am told to do”
28. The Visa Applicant was detained on 18 June 2002 when the Applicant’s home in Stanhope Gardens was raided. She was asked whether prior to that time she had ever made contact with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) her answer was “I know nothing – I was just living with my husband. I had no contact with anyone else.”
29. After her detention a bridging visa was issued on conditions including the provision of security. The Visa Applicant returned to Thailand and she and the Applicant were married in Thailand in December 2002. The Applicant has visited Thailand twice once in November 2002 and again in December 2003; he has sent her sums of money from time to time for her support.
PART C THE CROSS-EXAMINATION OF THE VISA APPLICANT
30. The Visa Applicant said that she had permission to work in Taiwan and that she returned to Thailand when her contract expired. She insisted that she did not overstay her visa in Taiwan and that the employer company in Taiwan made it clear that she would have to return after two years when her contract expired.
31. When she went to Taiwan she was part of a group of 19 who worked in the same place. She said that she didn’t have to fill in any forms merely “had to sign my name”; (it may be noted that the agent who acted for her in relation to Taiwan was not the agent who acted for her in relation to Australia).
She was then asked whether she read the form before she went to Taiwan. She agreed the form was in Thai and that she read it and signed it.
32. She again said that in relation to Australia, the agent told her to use her sister’s identity. It was then put to her that the family thought that this was not a good idea and she was asked why this was so. She replied that “they thought it wouldn’t be possible because there is an age gap and there would be a problem. They thought I might be caught”.
It was put to her that she also knew that she was doing the wrong thing and she answered “yes”.
33. She was then asked by the Tribunal why she chose Australia and not any other country. Her answer was “they didn’t go to any other places. You go wherever the agent wants to take you. I had already paid the agent the money and she couldn’t pay me back so I just had to go to Australia. She had to take me because I had already paid.”. It must be remembered that she said that she paid the agent 80000 baht for Taiwan but could not obtain a refund because the agent did not have the means; why then did she have to pay, and thus without credit for the amount already paid, a further amount of 50000 baht to the same agent, for Australia?
34. It was put to her in this context that she paid the agent one amount for Taiwan and a separate and additional amount for Australia. Further evidence by the Visa Applicant in this context included these statements: “The agent wouldn’t let me use my own passport. She said that she had done this for many others before. I didn’t think I was going to Australia. I thought I was going to Taiwan”
35. It was then put to her that she could have used her own passport and she answered “I did ask her – we didn’t have time to get a new passport. Everybody was ready to go.”
36. When asked whether the agent told her that she could get a visa using her sister’s identity she answered “she said it would be a lot easier if I used hers”.
37. When asked how she came to be involved with that agent she said “I met her through a friend from the north and this is the first I had to do with her.”
38. When asked whether she was aware that the agent was helping other people use false documents she answered “I was not aware of anything and I didn’t know that anything was wrong.”
39. When asked whether she ever looked at the passport she answered “I was not aware of what stamp was in it until my husband looked at it.”
40. It was then put to her that her husband (the Applicant) had not been able to procure her passport from Dtoy in Terrigal. She answered that she had photocopied it and showed the photocopy to the Applicant. (References at this stage to her husband were inaccurate in that he became her husband at a later date)
41. She then said that she made copies of her passport while still in Thailand. One was left over and she put it in her bag. She then said that she had photocopied only the first page of her passport and being the page containing her own photograph. She persisted with that statement during the remainder of the evidence saying that she had only the first page, and notwithstanding the fact that (see Tp91) she provided a complete copy of it in support of her spouse visa application.
42. When asked whether she planned to work in Australia she said “yes that’s right”. When asked how long she was coming to Australia for she answered “wasn’t sure how long I would be staying because she said I could stay as long as I liked indefinitely.”
43. When asked about the landing card signed by her when she first arrived in Australia she said that the agent filled it in and she merely signed it.
44. The Visa Applicant reiterated on a number of occasions that she was telling the truth and that she only photocopied the first page of her passport. When she was asked whether she wanted the Tribunal to believe that she could come to Australia on a false passport and stay as long as she liked, she changed tack to some extent and the following exchange took place:
“I thought you were asking me about when I was married. I copied on page then with my husband – I opened it with him.
You say that you didn’t have the passport that you used to come to Australia?
Dtoy took the passport and I just had the other one to get out of Australia
So Dtoy has the passport you used to get into Australia?
She took my passport and my husband tried to get it back but she said she didn’t have it. It was put in a cupboard with the jewellery but so long had passed that it couldn’t be found. I never got it back.
Do you remember lodging an application to come back to Australia after marrying Mr Copeland?
Yes, I remember.
As part of that application you used a copy of the passport you used to come to Australia in 1987. If that passport is lost, where did you get the copy from?
I can’t remember where that copy came from. I am telling the truth and it was three years and I find it hard to remember.
But you only lodged this application in 2003 and where then did you get the last page?
Oh is that right? I didn’t know that it was right. I am telling the truth. I told the authorities everything that is right.
It looks to me that you have still got the passport that you used to travel to Australia?
I don’t have my old passport. I only have what they gave me to leave Australia.
So how did you get that page?
I don’t know where it comes from. I’ve already done something wrong and I don’t want to do anything more wrong.
What did you do that was wrong?
I’ve been told I broke Australian law. I don’t know what I did wrong and I don’t want to be separated from my husband.”
(At this stage at about one o’clock on the first hearing day, the Visa Applicant became upset and the hearing was adjourned until the afternoon).
45. After the luncheon adjournment, the following exchange took place:
“When we left before the adjournment, we were trying to get an explanation of how you got this page which was lost.
As I told you before, I can’t remember.
You say you Xeroxed the first page and you also said that it was taken by Dtoy so I put it to you that you never gave it to Dtoy and it was always with you.
That’s not true – I am telling you the truth.
I gave it to her and since then I only had the piece of paper needed to leave the country.
It doesn’t explain how you could attach it to your spouse visa application.
I don’t understand it either. I can only remember copying one page. I don’t know how it got there.
Did you have any help in preparing your spouse visa application.
Only myself and my husband.
So the document submitted would have been documents you had?
Yes everything was in my name”.
46. Further cross-examination about the passport served only to confirm that the Visa Applicant was not giving truthful evidence as to the passport.
47. Specifically as to the visa, the following exchange took place:
“In relation to the visa which was granted to you to come to Australia, you signed the application form didn’t you?
I really cant remember – the agent took care of it.
The agent organised everything. I only received the passport after arrival. I don’t know what a visa is I only know what a passport is.
I am talking about the application for a visa. You would have to have signed it unless the agent forged your signature and it would be in your sisters name.
I don’t know what I signed or she signed.
So you don’t remember signing an application for a visa?
I may have signed it but I am not sure.
If you did sign it you would have had to sign your sisters name?
That’s right.
Well did you?
I am still not sure whether I put my sister’s name or not. I remember that I did the visa in Nong Kahi and it was taken to Bangkok.”
48. At length the Visa Applicant agreed that she probably did sign the visa application. She went on to say that could not read any English at all (except for some words) and repeated that she left school after completing grade six.
49. It was put to her that she was in Australia for some years and would have learned some English. Her answer was that she learned only the English taught to her by her husband. (This evidence was not consistent with that given by the Applicant.)
50. The Visa Applicant agreed that the passport was that of her sister with her photograph substituted for that of her sister. She said that it was a new application because her sister never applied for a passport. When it was put to her that she knew that she had come to Australia on a three month tourist visa her answer was “no, I didn’t know anything”.
51. When she was asked by the Tribunal whether it was her view that she could go to Australia on a false passport and stay indefinitely for as long as she liked her answer was “I have no experience of any of this”.
52. It was then asked whether if she believed all of this, what had she done which was wrong. Her answer was “if I could turn back time I would change this and this is the first time I am married”.
53. It was put to her that although she said she had no experience of any of these matters, she did have relevant experience because she had spent two years in Taiwan. She said in answer “when I went to Taiwan I went there legally and when I came to Australia I didn’t know English and I had no relatives or brothers or sisters and I had no one to seek advice.”
When it was put to her that she had no relatives in Taiwan either, she said that the group in Taiwan were all Thais. She said, when it was put to her that she could have asked for assistance at Sydney airport, “I didn’t know my way around”.
54. When it was put to her that she was not permitted to work on her tourist visa, her answer was “I wasn’t aware at the beginning – I was only aware later on. I was only aware after Dtoy wouldn’t return my passport. And that was soon after starting work in Terrigal.”
55. When it was put to her at the time when she left Dtoy in Terrigal, she knew that she had no right to work she answered “I knew at that time that I could not work but I had to pay for accommodation and food.”
56. It was then put to the Visa Applicant that she could have gone back to Thailand because she had a return ticket; she answered that she didn’t have a passport. She said also that she went to the Thai consulate to obtain a new passport and was told that she must furnish the previous passport. It was at this time that she sought to obtain it from Dtoy but without success. And then, so she said, “I met my husband”.
57. The Visa Applicant said that she told the Applicant that she had come to Australia using false documents about two months after meeting him. At the same time she told him that she was not allowed to work.
58. It was put to the Visa Applicant that even after she was taken into detention, she did not tell the authorities about the false passport. Her answer was that she had to use the name which was in her passport and being, of course, the false Yenjit name.
59. The Visa Applicant was asked why, after she was taken into detention, she didn’t tell DIMIA about the false passport. She answered “I told them all the truth. I was surprised because I had never been through anything like this before.”
60. She was then asked whether she had told DIMIA the passport was false and that her real name was different from that appearing in the passport. Her answer was “I told them my name is Yenjit”.
61. Mr Chand then put it to her that her name is really Somjit and that she continued to lie to the authorities. She repeated that she thought that she should give the name that was in her passport. When it was put to her that using the false name had already got her into so much trouble she answered “I had to say that my name was the same as in my passport”.
62. It was then put to her that the Applicant called her Yenjit. Her answer was “yes that’s right he called me the same name as my passport”. The Visa Applicant agreed also that the bridging visa and the security were all taken in her false name. She agreed that for these purposes she continued to call herself “Yenjit”.
PART D THE VISA APPLICANT; RE-EXAMINATION
63. Mr Chand objected to some re-examination on the basis that it did not arise from cross-examination. He was quite right but I allowed Mr Henry to continue nevertheless.
64. Mr Henry put it to the Visa Applicant that her family thought, when she embarked on the enterprise, that it was not a good thing and asked her whether this was because they thought it dishonest or because they feared she might be caught. She answered that they thought it was illegal.
65. Mr Henry then put it to the Visa Applicant that she had said that she came to Australia to work and asked her why this was so. She said that she wanted to earn money in order to send it home. She said “I needed to work to pay off a loan I had got. I had intended to go to Taiwan.”
66. The Visa Applicant said that she did send money to her mother and that her mother used it to pay back her loan. She said that she sent 100,000 baht. She said also that the very high interest rate had increased the amount of the loan. When asked what the rate was, she answered that it was 5%.
67. The Visa Applicant said that on two occasions since returning to Thailand she has given blood.
68. The Visa Applicant was asked what exactly she told the Applicant about two months after meeting him, she answered “I told him everything about the agent and about my life before Australia and about Dtoy and her holding the passport”. She was then asked whether she told him that she was using her sister’s name and she answered “yes”.
69. The Visa Applicant was then asked why in her spouse visa application she used her real name; answered “after everything I had been through I knew I had to tell the truth, I didn’t want to lie anymore.”
PART E THE EVIDENCE OF THE APPLICANT
70. The Applicant will be 40 in October 2005. He studied carpentry at a TAFE for four years and then studied for a further five years to obtain a builders licence. His parents live in Sydney. He has two sisters both married, one with four children and the other with one child.
71. The Applicant has built up a substantial business and appears to have substantial assets. He has travelled extensively. He has never previously married because, so he said, none of his previous girlfriends “felt right”.
72. He met the Visa Applicant through Wannee who lives two doors away from him.
73. The Visa Applicant moved in with him in Easter 2002, after they had met in February 2002. He said that they could communicate in English without undue difficulty although her English was sometimes odd. He said that he found her English easier to follow than did his parents. He said she was at that time thinking about a return to Thailand.
74. The Applicant said that she didn’t tell him then about any immigration problems and “you don’t ask whether you can see her passport”.
When asked when she did tell him about her migration status he answered “she never told me. She sort of hinted that she shouldn’t be here and maybe she had overstayed her visa.” This was soon after she moved in.
75. The Visa Applicant and the Applicant started talking marriage in April 2002. By then he knew that she didn’t have a visa and that her passport and jewellery had been kept by Dtoy. He went to Terrigal to try and retrieve these items but was only successful in relation to the jewellery.
76. The Applicant was asked whether a report (and see clause 5 above) made by DIMIA at the time of the Visa Applicant’s detention was correct. For this purpose the report was shown to him. He said that some of it is accurate, but that he would have preferred other words.
77. It was the Applicant who put up the security which enabled the grant of the bridging visa after the Visa Applicant was detained. He was asked why, after the Visa Applicant was apprehended, he and the Visa Applicant continued to use the name Yenjit. The Applicant said that he referred to her always as “Nit” and went on to say “I thought that she should use the name of the passport she came in on. I thought there would be a spanner in the works if one person came in and other person went back. But I knew her real name.”
78. It seems clear that despite inconsistencies between his evidence and that of the Visa Applicant, on this particular subject, he knew she was illegally in Australia and illegally working in Australia and using false papers at some time after he met her but before she was detained and in all events before their marriage in Thailand.
79. I accept that the Applicant cannot be reunited with the Visa Applicant in Thailand. He does not believe that he can make a living in Thailand and in any event find it too hot. He has a substantial business in Australia. As to other countries, his attitude is that there is no reason why he should consider any of them because, after all, he is Australian.
80. The Applicant was at all times forthcoming and engaging. He knew nothing of immigration law and said that he did no know anything about immigration practitioners. He thought that places like Villawood were for ‘boat people’ only. Although his father is a solicitor and he consulted his father at the time of the detention of the Visa Applicant, that process does not appear to have encompassed the use, even of that late stage, of the Visa Applicant’s false identity in relation to her release from Villawood.
PART F THE VISA APPLICANT’S EVIDENCE AND THE CHARACTER TEST
81. As I have noted, Mr Henry conceded (correctly) that the Visa Applicant could not pass the character test.
82. Her evidence throughout was in my view altogether unreliable and untruthful and notwithstanding Mr Henry’s warning that it is important that she tell the truth. It would seem that she believed that her best course of action would be to assign all of the blame to the agent, who according to her was responsible for everything. She, as she said repeatedly, had achieved only grade six, spoke no English, read no English and everything untoward was her (the agent’s) responsibility.
83. To attribute her arrival in Australia entirely to the agent on the basis that she wanted to go to Taiwan instead is simply ludicrous. She knew that to use a false identity was wrong and that her family were distinctly uneasy about it but she went ahead anyway. It must be remembered that she had spent two years in Taiwan and so that passports and visas were, at least to some extent, familiar to her. Mr Henry in submissions later contended that she was in Taiwan as part of a group and where all of these matters might have been handled by someone else. That contention is not without some substance, but it does not even begin to answer all relevant questions. When the Visa Applicant contended that she had trusted the agent’s statement that she could travel to Australia and stay and work in Australia for as long as she please and all that on false documents, she was not telling the truth. As to why her own passport could not be used for a return trip to Taiwan was never explained. Although there was never any admission to this effect, the likeliest scenario is that the Visa Applicant could not, as a single young woman, obtain a tourist visa to Australia; as a married woman with children she could and thus for this purpose adopted her sister’s identity. This is the most likely and probably the only possible explanation of her use of a false identity. And all of her evidence as to the manner in which she came to Australia in the first place is equally untruthful.
84. She said that she paid the agent an amount of 80,000 baht for Taiwan. When Taiwan proved impossible for whatever reason, she said that she had to pay another amount of 50,000 baht for Australia and because the agent could not repay the first amount. On this basis she would at the very least been entitled, in relation to the Australian leg, to a credit for what she had already paid for Taiwan.
85. Her evidence as to the passport and the page photocopied was so inconsistent that it cannot be taken seriously.
86. The Applicant in his evidence (which is in all circumstances where it conflicts with that of the Visa Applicant to be preferred) said that when he met the Visa Applicant she understood enough English to enable them to converse. She said by contrast that she learned all of her English from him. This is not likely in that after a number of years in Australia, most of it in Terrigal, she would have achieved some degree of proficiency. It is true that she was working in a Thai restaurant in Terrigal but the Thai population in Terrigal cannot be so large that she conversed only with fellow Thais.
87. The Visa Applicant, as I have noted, described herself in pathetic terms as an ill educated waif who did whatever she was told to do by the agent. The Applicant described her as being of average intelligence and being neither very bright but also not stupid. Mr Henry contended that when in Taiwan she was there as part of a group and cared for accordingly. This may be so but she could not have travelled to Taiwan and lived and worked there for two years without understanding what she was doing.
88. The Visa Applicant was advised by her family that to use a false passport and visa, as she did, was wrong or at the least ill-advised, but she did so nevertheless. At the core of her (inconsistent) evidence is that she had to go to Australia because the agent took people to Australia (and not to any other country) and that the agent told her that on her false papers she was entitled to live and work in Australia for as long as she liked. Leaving aside for the moment her (inconsistent) evidence which indicated that she knew perfectly well that she was doing something which was wrong, the Visa Applicant’s evidence necessarily requires the Tribunal to believe that somehow or other the agent occupied a position which entitled her to dictate precisely where and how the Visa Applicant went. The Visa Applicant paid the agent 130,000 baht. She was not obliged to do so and indeed borrowed money in order to pay the agent. Nobody forced her to go to Australia; that was simply not possible. The evidence suggests that on, the balance of probabilities, the Visa Applicant borrowed money in order to pay the agent who was engaged in people smuggling in order to procure her entry into Australia. She, the Visa Applicant, said that she went to Australia to stay and work and in order to earn money to repay her loan; the flaw in that evidence is that the loan was taken out to take her to Taiwan and when that proved impossible in order to take her to Australia.
89. The Visa Applicant’s evidence as regards Dtoy is hard to accept. Why would Dtoy have taken her passport and jewellery and then after pressure returned the jewellery but not the passport? Her evidence as to the fact that she photocopied only the first page of the passport cannot be accepted in the light of her spouse visa application and the documents submitted in connection with that application.
90. I do not think it necessary for me to go further as regards the Visa Applicant’s evidence in order to demonstrate its untruthful nature. Her use of false documents was in breach of section 234 of the Migration Act 1958 (“the Act”). So for that matter was the use of her false identity at the time when she was detained and immediately prior to her departure from Australia. And so was much of her evidence before me. The penalties prescribed for breaches of section 234 of the Act are such that her conduct must be regarded as very serious (and see also clause 2.6 of Ministerial Direction 21). The Visa Applicant was of course guilty also of numerous breaches of section 235 of the Act in that she worked unlawfully and her evidence was that she thought, at least for a time, that she was entitled to do so cannot be accepted.
91. It follows then that Mr Henry’s concession (made towards the end of the proceedings) as to her failure of the character test was undoubtedly correct.
PART G DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No. 21 (“DIRECTION 21”)
92. In this Part G reference to numbered clauses relate to numbered clauses in Direction 21.
93. The primary considerations are set out in clause 2.3 which reads as follows:
“2.3 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.”
94. 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 of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
95. As I indicated at the hearing, I do not think that the Visa Applicant poses a threat to the Australian community. Nor would I rate the prospects of recidivism as high, although this aspect cannot be discounted entirely given that her unlawful conduct extended over so long a period culminating in evidence before this Tribunal which was so remarkably untruthful, even in the context of immigration cases where truth is so often the first casualty. As I have said, she was warned by Mr Henry that she must give truthful evidence. She was unable or unwilling to do so.
96. In the context of recidivism and deterrence generally, I refer to a number of cases and which I referred to in my decision in Silva and Minister of Immigration and Multicultural & Indigenous Affairs [2005] AATA 27, a decision which was cited before me; clauses 119 and the two following clauses of my decision in Silva read as follows:
119. In respect of deterrence generally, 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 in which I referred to certain other decisions of this Tribunal and reading 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.”
119. In the context of deterrence and also recidivism, I refer also to clauses 85 and 86 of my decision in Ynson (supra), as follows:
“[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”.”
120. I refer furthermore and in the same context, 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).’”
97. Mr Henry contended in the context of deterrence that it is hardly likely that decisions of the Tribunal are known in Thailand. That is probably so, but there is now a sizable Thai community in Australia, amongst whom this decision will become known. To reward behaviour of this kind, with the grant of a visa, would send entirely the wrong message to persons who might be contemplating taking part in a people smuggling racket.
98. Mr Henry contended that the Visa Applicant and the Applicant when the spouse visa application was filed “came clean” and disclosed her true identity and also the fact that she had been in Australia and at a time when they were not constrained (in practical terms) to do so. I disagree. They had no option but to do so. If the Visa Applicant had made an application for a spouse visa in her own name and identity but concealing her previous presence in Australia, there would then have been a question as to how and when the Visa Applicant and the Applicant met. Assuming that (and this is of course hypothetical) they alleged a meeting in Thailand, the Applicant’s passport details would have been relevant. I need not elaborate further as to this aspect.
99. Mr Henry contended also that there has been delay in processing this application and that the parties have been separated for some thirty months and in effect that they have been punished sufficiently already. I do not think that this argument is relevant so far as this Tribunal is concerned.
100. Mr Henry next contended that the Visa applied for is a temporary visa only and so that if granted the Respondent would have to consider the matter again at a later date. He pointed out that this was a consideration taken into account by Deputy President Forgie in El Chaar and Minister for Immigration and Multicultural Affairs [2001] AATA 720: see clause 145 of her decision. It is a relevant consideration and indeed Direction 21 requires that it be taken into account but it is not one which in my view can have much weight in the light of the Visa Applicant’s overall behaviour. In the same context Mr Henry argued that the Visa Applicant did not as so many Applicants do, make a false protection visa application followed by equally false referrals to the Refugee Review Tribunal and to the Respondent under section 417 of the Act and should be given credit accordingly. Leaving aside the fact that the Visa Applicant’s conduct was by any standards bad enough, it is odd to be asked to give credit for the fact that there were some crimes (however usual) which were not committed. There was no evidence before the Tribunal as to whether or not the Visa Applicant paid any tax in Australia. Almost certainly she did not but I do not think that this is a material factor.
101. Mr Henry cited El Chaar (supra) as supporting his case. I do not agree. As the decision makes clear (and see clause 146) Deputy President Forgie was “most concerned for Mrs EL Chaar’s daughters”.
102. Mr Henry referred me to Regulation 820.211(2)(d)(ii) paragraph 3.3.14 of the (PAM3) Policy Guidelines. As I understood the representatives of the parties, it was accepted that it is not relevant on these particular facts.
103. Mr Henry referred me also to the Industrial Convention on Civil and Political Rights and the provision which reads “the right of men and women to marry and found a family shall be recognised”. That right is of course not absolute.
104. Mr Henry referred me to Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029 as being in favour of his client. I note that Brennan was a decision of Deputy President Handley who affirmed the decision under review. It is hard to see why it favours the Applicant. Mr Henry also cited the decision of the same Deputy President in Hossain and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 315. Hossain too is in my view distinguishable on the basis that the conduct of the Visa Applicant in that case, having regard only to the facts as described in the decision, was not as serious as that of the Visa Applicant. Certainly the Visa Applicant in Hossain did not enter Australia using forged documents. Based entirely on the facts as described in the decision in Hossain, I think, with respect to Deputy President Handley, that the applicant in that case was decidedly fortunate.
105. I consider that having to regard Clause 2.12, the expectations of the Australian community would be against the grant of a visa. Experience has taught me that the public at large do not regard immigration offences as seriously as section 234 of the Act and Clause 2.6 of Direction 21 require. But the use of false documents and participating in a people smuggling racket would not in my view, be regarded otherwise than as serious.
106. This brings me to the question of hardship to the Applicant under Clause 2.17. He presented as an able young man who has already achieved much. There was little evidence of the depression referred to in Exhibit A3. I have already accepted that he cannot in practical terms be re-united with the Visa Applicant in Thailand and so that the hardship factor for him is considerable. But at the same time it must be remembered that he knew of the Applicant’s conduct at a comparatively early stage (although the evidence as to when precisely this occurred is inconsistent) and at all events prior to her detention and prior to their marriage. Clause 2.17(b) refers to the “circumstances under which the relationship was established” which requires a consideration of timing. The use of the word “established” must have the effect that we are not here concerned with the date on which it began but rather the date on which it became firm in the sense that it would continue thereafter. The date on which the parties became engaged or the date on which they contracted to live together on a permanent basis albeit in a de facto relationship, must in my view be the most relevant date. That date occurred before the Visa Applicant was detained.
107. When all is said and done, there are strong factors against the exercise of the discretion while the only factor pointing in the other direction is hardship to the Applicant and that hardship factor is, as I have indicated, to be discounted because of his knowledge of the true circumstances. It is difficult to imagine why at the time of her detention, he would have continued the deceit more particularly as he apparently had access to his solicitor father for advice. Numerous decisions of this Tribunal have in general terms affirmed the decisions under review where there were adverse primary considerations and where the only countervailing consideration is hardship to a spouse with knowledge.
108. During the hearing, mention was made of the fact that it will be open to the parties to apply again at some future time. It seems to me that it would be inappropriate for me to express a view as to future proceedings of this nature. I do note however that notwithstanding the imprudent nature of some of his conduct, the Applicant does present as an honest and decent man and moreover one who has behaved with devotion towards the Visa Applicant. I have not referred to evidence before me as to the genuineness of their marriage because that is not in issue before me.
109. People smuggling is an enterprise which appears to be increasing. See Reng Sheng Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828 which was cited before me and also the case of Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438. On the evidence before me, the Visa Applicant engaged in such a racket and of course rackets of this nature must be discouraged.
110. There are countries in Asia where apparently giving false evidence before a Tribunal such as this is not regarded in a serious light or where perhaps it may be said, is taken for granted. It is desirable that solicitors and agents representing persons from those countries, and for that matter other countries, make it clear to their clients that false evidence will always be regarded by this Tribunal in a serious light.
111. The T-documents include character references which were not referred to during the hearing (see T-documents, page 250 to T-documents, page 252). A reference by the Applicant’s father has a significant defect in that it does not refer to the breaches of the law committed by the Visa Applicant. In the T-documents at page 252, a reference by M & L Williams states that “we are aware of the laws that were broken by Somjit and fully understand that these laws are there to protect the country”. The breaches by the Visa Applicant fall into the very serious category.
112. This is not a case where the discretion can be exercised in favour of the Applicant and the decision under review must be affirmed.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: Andrew Garcia
AssociateDate/s of Hearing 31 January and 1 February 2005
Date of Decision 16 February 2005
Solicitor for the Applicant Mr S Henry
Solicitor for the Respondent Mr A Chand
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