Dam and Minister for Immigration and Multicultural Affairs - [2001] AATA 649

DECISION AND REASONS FOR DECISION [2001] AATA 649

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1397

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SIM DAM
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt Q.C., Deputy President

Date13 July 2001
PlaceSydney

Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa not be refused under section 501 of the Act.

[SGD] S P ESTCOURT Q.C.
Deputy President
CATCHWORDS
Immigration – visa subclass 104 (Remaining Relative) – refusal of visa – whether person not of good character – false and misleading statements and documents – discretionary consideration – decision set aside.
Migration Act 1958 – s 501
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Re Lachmaiya and Minister for Immigration and Multicultural Affairs (1994) 19 AAR 157
Re Tuipulotu and Minister for Immigration and Multicultural Affairs [2001] AATA 451
Minister for Immigration and Multicultural Affairs v Baker (1997) 73 FCR 187

REASONS FOR DECISION

Mr S P Estcourt Q.C., Deputy President

This is an application by Sim Dam for the review of a decision by the Respondent to refuse a visa sub class 104 (Remaining Relative) to the Applicant's sister Dam Sokha ("the Visa Applicant") pursuant to s501 of the Migration Act 1958 ("the Act") on the basis that she was not of good character having regard to her past and present general conduct.
On 8 February 1996 the Visa Applicant completed and signed an Application for Migration to Australia form which was duly lodged with the assistance of a migration agent. That form is known as a "form 47".
In her form 47 the Visa Applicant, in response to question number 61 which stated,
"Give details of ALL your and/or spouse's children under 18 years of age whether or not in your care and legal custody"

listed five children, including Hak Srey Nin, whose date of birth was given as 06/07/87, the same date as another daughter listed, namely Hak Srey Mom.

In response to a further question in the form 47, question 67, the Visa Applicant, in response to the request to,
"Give details of ALL your family, whether migrating with you or not …
All your children (including from previous marriages/relationships)"

again listed Hak Srey Nin as one of five children and again gave her birth date as 06/07/87.

The Visa Applicant lodged, in support of her application, birth certificates for all her children all obtained on the same day, namely 9 January 1996.
The birth certificate for Hak Srey Nin listed her date of birth as 6 July 1987 and under the heading "Parents … Father … Mother" listed Hak Chin (the Visa Applicant's late husband) and Dam Sokha respectively.
In further support of her application the Visa Applicant lodged a certificated family book which was certified by an Inspector of Police on 18 March 1995 and which showed the name, date of birth, sex, relationship to the head of family and occupation for each family member as all being registered on 16 March 1995.
The family book included Hak Srey Nin, shown as a female, born in 1987 and a daughter of the head of the family.
On 11 September 1996 a Client Service Officer of the Australian Embassy in Phnom Penh, Sophoan Rath, requested permission from the Principal Migration Officer, Linda Urquhart, to conduct a "house check" in relation to the Visa Applicant.
Mr Rath, for whatever reason, expressed concerns as to whether or not the Visa Applicant was the person who she claimed to be and whether all of the children included in the application belonged to her.
The request to conduct the house check was approved on 16 November 1996 although it was not fully conducted until 30 January 1998.
Mr Rath's report of the house check was completed on 4 February 1998 and reads as follows (T30):
"This house-check was done at the current residential address of a/n on 30 January 1998 at the suggestion of Case Officer.
At around 11.00 am I arrived the vicinity. I met a lady selling ice at her shop, this lady was joined by a young man at the time of my question. I asked her if she knew a/n and family. She said that she knew a/n and showed me the house of a/n, she went on to claimed that this couple has four children, her parents are dead. I asked her if she knew if a/n has any relative in Australia. She replied that a/n has one aunt and one younger brother, that aunt was the one who sponsored her younger brother to go to Australia, besides this she does not have any other sibling here. I showed the pictures of a/n's children and asked her to identify. She identified as children of a/n except Hak Srey Nin who she claimed to be niece of a/n. How Srey Nin related to a/n. She said Srey Nin's mother is a/n's cousin who is also living with a/n, they are living with a/n, she added. Then I asked her if she knew a/n now get devoiced (sic) from her husband. She said she did not know about it since she did not have much contact with a/n so a/n's internal family matter was hard to know, they were now enjoying at Sihanoukville, she continued."

On 24 January 2000 the Visa Applicant was interviewed at the Australian Embassy by Migration Case Officer Ling Nouv. The interview was conducted by Ms Nouv asking questions in English and the Visa Applicant responding in Cambodian. The necessary interpretation was carried out by Chenla Chheang.
The resultant record of interview is in English and Mr Chenla no longer has any note of his interpretation and has no recollection of the questions which were asked and the answers which were given.
Among the questions and answers recorded in the record of interview are the following:
"6. Who lives in your household?
Myself, my children and a distant relative who is from the countryside and has come to the city to study.
10. How many children do you have?
Five.
…
11. What are their names and respective dates of birth?
Hak Oun, 30/12/83;
Hak Srey Sros, 9/2/85;
Hak Mom) 6/7/87 (twins)
Hak Nin )
Hak Oudom 31/5/92.
…
28. I wish to confirm that we have photographs for all your children. Please examine these five photographs and confirm that the persons are your children.
Pa looked at the photographs and stated that Hak Srey Nin is not her biological child. The PA claimed that the child's mother passed away in 1988 and her father passed away in 1987. As the child was an orphan with no siblings the Pa claimed she adopted her since she was ten years of age.
[Hak Srey Nin was born in 1987, the information provided by the applicant is not credible.]
29. Why have you recorded your name as the Hak Srey Nin's biological mother on her birth certificate if this is not correct?
After her parents passed away, I didn't wish to reveal the truth to her and since her birth date is only months away from Hak Srey Mom, I registered them as twins.
30. By not revealing this information at the outset of this application, you have provided false and misleading information within your application. The embassy takes this very seriously and this will be taken into consideration when making an assessment.
All the documentation I have records Hak Srey Nin as my natural daughter as I didn't want her know the truth about the adoption.
31. Under Section 57 of the Migration Act, we are required to present adverse information to you and ask you to comment.
On 30 January 1998, two officers from the embassy conducted a house check. They went to your residential address in Tuol Svay Prey. Your neighbours confirmed that HAK Srey Nin is actually your niece, her mother is your cousin and both persons live with you. Would you like to comment on the matter?
That's not correct.
32. We received two independent statements to confirm that Hak Srey Nin's mother lives with you. Would you like to comment?
I don't know. Srey Nin is my niece, but her parents are dead."

On 10 July 2000 Ms Ling Nouv again interviewed the Visa Applicant at the Australian Embassy and again Mr Chenla interpreted. The situation concerning the conducting of the interview, Mr Chenla's notes and recollection of it and the subsequent record of it, are the same as with the earlier interview.
The record of interview commences with advice to the Visa Applicant that her application was liable to refusal because of her past and present general conduct, because she had claimed that Hak Srey Nin's mother died in 1988, when she in fact still resided with the Visa Applicant and because she had claimed that she was Hak Srey Nin's biological mother. It then proceeds, relevantly, with the following questions and answers:
"1.   If this office were to exclude HAK Srey Nin from this application, would you and your four children migrate without her: I feel sympathetic towards her as I have raised her since she was young. I can reconsider this matter. I didn't realise I had to state the true & specific relation. In Khmer context, adopted children are considered as natural children. I will migrate with my four children without Hak Srey Nin if necessary.
2.    Would you like to comment on the whereabouts of HAK Srey Nin's biological parents? They are deceased. If you don't allow the child to go, I will make arrangements for her care in Cambodia. I pity her because she doesn't know anything.
3.Why have you recorded HAK Chin and yourself as HAK Srey Nin's natural parents on her birth certificate? Any documentation bearing her name, I register her as my natural child. Your interpreter understands this in the Cambodian context and fully aware of this.
4.    Would you like to comment on the genuineness of Hak Srey Nin's birth certificate? Genuinely issued but contains wrong names for parents. Date of birth recorded as similar to my child. I didn't declare the child's natural parents on her birth certificate as it was agreed between myself & my spouse to avoid problems in future – I don't want my children to be aware of the adoption.
5.Do you agree that having regard to your past and present general conduct you are not of good character? I disagree with this, as in the Khmer context, this is how things are done here.
6.Do you have any comment regarding the concerns expressed in relation to your current application? I want to know whether the child can migrate with me. [Interviewer cannot answer the question because I am not the decision maker.] I did this because I was not aware of Australian law. Everything is in accordance with local practice.
7.Do you wish to comment on the seriousness of these issues and the circumstances under which your conduct occurred? I have raised this girl since she was young … I declared her as my own child and I actually wasn't aware of Australia law. I didn't tell my sponsor & agent in detail my personal circumstances and this isn't reflected in my application. I told you the truth on 24/1/2000 during the interview."
…
You should note that in all cases involving parental or other close relationships between a child and the visa holder, a primary consideration would be the best interests of the child.
Do you wish to make any comment regarding this matter, particularly the impact of attempting the illegal separation of HAK Srey Nin from her natural mother?
That's not correct. I do not know, I have declare she is my adopted daughter. I declared she is my niece. I don't know who you spoke to.
…
Do you have any further information that you consider relevant?
I would like you to reconsider this application. If you need me to withdraw Hak Srey Nin from this application you should advise me.
[Interviewer – cannot advise applicant, please speak to your agent & sponsor.]
I tried to declare her as my child because I wasn't aware of A/a law. I am only aware of local law."
It is clear that the second interview and the subsequent refusal of the Visa Applicant's application involved two considerations, namely that the Visa Applicant had lied about Hak Srey Nin's mother being dead and had also lied about being Hak Srey Nin's mother and about her date of birth.
I am not satisfied that the Visa Applicant told any untruth about the death of Hak Srey Nin's mother (Ee Srey).
The only evidence that Ee Srey was, or is, alive comes from Mr Rath's report of his conversation with the ice seller and the young man who joined her during the course of his house check on 30 January 1998.
It is true that those persons provided Mr Rath with accurate and detailed information concerning the Visa Applicant's family and that would ordinarily lend verisimilitude to the statement that the Visa Applicant's cousin was alive and living with her. There is however other evidence.
On 31 January 2000 five people, Dee Phalla, Pen Sophy, Kim Sakun, Lim Reth and Nhel Sarann, attested that the Visa Applicant had adopted Hak Srey Nin since she was 10 months of age, as her father Heng Sophal died in 1987 and her mother Ee Srey died in 1988.
That attestation disclosed the addresses and identity card numbers of the five persons concerned, was signed with their thumbprints and was sealed by the Chief of Sangkat Tek La Oak III. It was also accompanied by copy identity cards for those persons.
Further, on this question a written statement and oral evidence from Kong Saru, the Chief of Quarter where Ee Srey died, was to the effect that, from his own recollection and from the statistics of the commune, Hak Srey Nin was given to Hak Chin and Dam Sokha to adopt as their daughter since 1988 after her father and mother died in 1987 and 1988 respectively.
Having weighed the evidence of Mr Rath's conversation with the ice seller and the young man, and that of the attesting witnesses and the Chief of Quarter, Mr Kong, I am satisfied that Ee Srey died in 1988 and that Hak Srey Nin was informally or traditionally adopted in 1988 when she was about 10 months old.
I also find on the unchallenged evidence of the Visa Applicant that Hak Srey Nin's birth name was Hak Ksrey Nin and that her true date of birth was 4 July 1987.
That leaves me to consider whether the Visa Applicant fails the "character test" under s501 of the Act on account of her past general conduct in relation to the provision of birth and parental details of Hak Srey Nin in the visa application and the supporting birth certificate and family book.
Counsel for the Respondent submitted that the Visa Applicant is not of good character in that regard, because she supplied false information to Cambodian officials to obtain the birth certificate; she presented that birth certificate to her migration agent and did not ask for advice about how to deal with an adopted child; she attached the birth certificate, which at the very least was misleading, to the visa application intending to represent the child as her natural child, when she could just as easily obtained an adoption certificate; she gave false answers to questions 61 and 67 in the form 47, and she lied to the Tribunal when she said in evidence that she had entered Hak Srey Nin in her family book in 1988.
Counsel for the Respondent also submitted that the Visa Applicant was not of good character because on her second interview at the Embassy she indicated a preparedness to leave Hak Srey Nin in Cambodia if she could not get a visa for her. Something, counsel said, she was not prepared to say she would do in respect of any of her natural children.
The meaning of "good character" as used in s501 of the Act was explained by the Full Court of the Federal Court in Re Goldie and Minister for Immigration & Multicultural Affairs [1999] FCA 1277 at paragraphs 5-7. There the Court said at paragraph 8:
"The concept of 'good character' in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry."

It is also clear from Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195 that there is no warrant for extracting from the broad word "general" in "general conduct", that conduct, other than conduct so frequently indulged in as to be described as prevalent or usual, is eliminated from consideration.
As the Full Court said in that case:
"Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly."

There can be no doubt that it was false and/or misleading in fact, whether or not the Visa Applicant understood or intended it to be so, to state that Hak Srey Nin was her natural child and that her birth date was 6 July 1987. Actually, it was also false and/or misleading to state that Hak Ksrey Nin's name was Hak Srey Nin.
There is also no doubt that Ministerial Direction No 17 which guides the exercise of decision-makers' powers under s501 of the Act makes it clear that, in the absence of any countervailing factors, the provisions of a bogus document or the making of a false or misleading statement or declaration in connection with a visa application would cause a person to fail the character test.
As Deputy President McMahon said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155-156:
"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 when dealing with the many reasons for coming to Australia."

Finally, I observe that this Tribunal has frequently emphasised the gravity of sustained fraudulent conduct on the part of visa applicants. See, for example, the cases referred by Deputy President Wright in Tuipulotu v Minister for Immigration and Multicultural Affairs [2001] AATA 451.
Keeping in mind all those matters I have reached the conclusion that I cannot accept the submissions of counsel for the Respondent as to the Visa Applicant's character.
In my view the very significant countervailing factor in this case is the consistently exhibited motivation for the Visa Applicant's conduct, namely that she regarded Hak Srey Nin as her natural daughter, that she had treated her as such since 1988 and that she was concerned that Hak Srey Nin did not learn otherwise.
I reject the submission that her inclination to leave Hak Srey Nin behind gives the lie to such motivation. That was an agony of the moment statement in my view, made in the face of a clear indication that her visa was liable to be refused and is a statement which she now recants.
I also reject the submissions that she lied to the Tribunal when she said she had entered Hak Srey Nin as her daughter in her family book in 1988. I infer that there must have been an informal family book as the official notated family book in evidence shows all entries including the Visa Applicant's, her late husband's and her four other children as being registered at the date the family book was notated, namely 16 March 1995.
In reaching my conclusion that the fact of the falsity of the answers to questions 61 and 67 in the form 47 and the entry in the family book and the birth certificate, do not demonstrate bad character in all the circumstances, I am significantly influenced by the manner in which the Visa Applicant answered the questions put to her at the two Embassy interviews.
On the first interview she volunteered the information that Hak Srey Nin was not her biological child at a time where she had not been confronted with any suggestion that indicated Embassy officials suspected this and she denied quite simply that Ee Srey was still alive.
On the second interview she consistently maintained that she did not know she had to state the true and specific relationship of Hak Srey Nin because in the Khmer context adopted children are considered as natural children and that any documentation bearing Hak Srey Nin's name showed her as the Visa Applicant's natural child.

I draw comfort for my conclusion that the Visa Applicant was answering honestly in giving those answers, not only from the fact that she had obviously changed the child's name from her birth name and had altered her birth date as a matter of practicality, given her own child Hak Srey Mom was born only a few days after Hak Srey Nin, making it impossible for her to assert anything other than that she and Srey Mom were twins, but also from the evidence of the First Secretary of the Australian Embassy at Phnom Penh, Ms Denise Earnshaw.
In a memorandum dated 9 July 2001 Ms Earnshaw stated that a Certificate of Adoption can be obtained in Cambodia on an as reported basis from the relevant commune official in the same manner as a birth certificate and, in the example she enclosed with her memorandum, the adoptive parents concerned actually first obtained a birth certificate, as had the Visa Applicant , showing their names as the birth parents.
Even had I not reached the view that the Visa Applicant's conduct was, as consistent with the perpetuation of an apparently not uncommon traditional attitude to adoption as with bad character, I would have exercised my residual discretion under s501 of the Act in favour of the Visa Applicant on the basis that, absent any consideration of Ee Srey being alive, the nature and seriousness of the conduct, taken in the context of a genuine traditional adoption of some eight years standing, would not be such that the protection of the Australian community or its expectations would call for a refusal of the visa.
It has been suggested that the third of the primary considerations under Ministerial Direction No 17 may also be relevant, namely the best interests of the children of the Visa Applicant including Hak Srey Nin.
The argument runs, that because formal adoption laws exist in Cambodia and Hak Srey Nin was not legally adopted, she may be ineligible for a visa and her best interests lie in not being separated from her adopted siblings.
I do not accept that submission as, on the evidence before me, there is no suggestion that those Cambodian adoption laws were in place at the time Hak Srey Nin was given to the Visa Applicant to adopt as her daughter.
Even were it a consideration it would not in my judgment outweigh the other considerations under the Direction pointing to a favourable exercise of the discretion to the Visa Applicant.
It follows that the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa application not be refused under s 501 of the Act.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr S P Estcourt QC, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing  9 & 10 July 2001
Date of Decision  13 July 2001
Solicitor for the Applicant         Mr Ray Turner, Tzovaras Legal
Solicitor for the Respondent    Mr Glen Cranwell, Clayton Utz