Horwood and Minister for Immigration and Multicultural and Indige Nous Affairs

[2004] AATA 250

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 250

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           N2003/327

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DANIEL HORWOOD

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J Block, Deputy President

Date11 March 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr J Block, Deputy President

CATCHWORDS

IMMIGRATION - Visa Application - Spouse Visa - Character Test - Primary Considerations - Manner in which Direction 21 should be interpreted – Discretion not to be applied in favour of the Applicant.

Migration Act 1958; s501(1); s234; s235

Direction No 21

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277

REASONS FOR DECISION

11 March 2004 Mr J Block, Deputy President       

PART A – INTRODUCTION AND GENERAL

1.       The decision under review is the refusal by the Respondent of an application dated 12 June 2001 by Ms. Nutda Horwood (“the Visa Applicant”) of a provisional spouse (subclass 309) visa; that application was sponsored by Mr Daniel Horwood (“the Applicant”), who is the Visa Applicant’s husband.

2.       Mr K Murphy of Craddock Murray Neumann appeared for the Applicant.  On the first two hearing days, Mr. Christos Mantziaris of Blake Dawson Waldron, solicitors, appeared for the Respondent and on the third and fourth hearing days Ms. Kiran Grewal, also of Blake Dawson Waldron, solicitors, appeared for the Respondent.  The Tribunal had before it the T-documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and in addition exhibits as follows:--

Exhibit A1 is a statement by the Applicant dated 17 July 2003

Exhibit A2 is a superannuation benefit estimate in respect of the Applicant

Exhibit A3 is a statement by Lorraine Laura Brown dated 8 July 2003

Exhibit A4 is a statement (undated) by the Visa Applicant

Exhibit A5 is a batch of and phone cards and phone receipts

Exhibit A6 is a batch of photos

Exhibit A7 is a certificate by a government department in Laos as to the Visa Applicant’s ownership of certain property

Exhibit A8 is a DFAT printout referable to Thailand issued on 13 June 2003 and in addition an update

Exhibit A9 is a printout of World Health Organisations Selected Indicators for Australia

Exhibit A10 is a printout from World Health Organisations Selected Indicators for Thailand

Exhibit R1 is a transcript of an interview of the Visa Applicant, which occurred in December 2001

3.       Oral evidence was given by the Applicant and the Visa Applicant and in the case of the Visa Applicant by telephone link in the main to Laos.  Oral evidence was also given by Mrs L Brown (Exhibit A3).

4.       This case ran for four hearing days, on 23 and 24 October 2003 and thereafter on 17 and 18 February 2004.  It should be noted that the hearing on the second day was adjourned at an early stage because of a car accident in which the Visa Applicant was involved.  On the third hearing day an interpreter was available for only about two hours and for this reason the hearing on that day was shorter than it would otherwise have been.

5.       The Respondent furnished a Statement of Facts and Contentions dated 1 September 2003, which contains the usual helpful chronological description of relevant events.  Clause 1 under the heading of “Facts” reads as follows:--

“FACTS

Date	Event	Reference
11 March 1952	Review applicant born in Tamworth, Australia	Tpp 3, 33, 61, 144
17 November 1967	Visa applicant born in Maha Sarakham, Thailand	Tpp 5, 31, 39, 71, 73, 141
6 November 1990	Visa applicant changes her first name from Uraiwain to Amara	Tp 75
22 February 1991	Visa applicant's daughter, Miss Angsana Suato is born in Bangkok, Thailand	Tpp 32, 92, 95, 141
16 May 1984 – 23 February 1991	Visa applicant in relationship with Mr Amnard Suato	Tpp 39, 117, 141
18 September 1995	Visa applicant changes her first name from Amara to Paphawadee	Tp 77
30 June 1980 – 31 July 1996	Review applicant in former relationship	Tp 43
24 March 1999	Visa applicant's daughter Miss Angsana Suato changes her first name to Somphassorn	Tp 97
21 May 1999	Visa applicant is granted a one month visitor visa under the name Paphawadee Iamwong	Tp 5
27 May 1999	Visa applicant first arrives in Australia on a sub-class 676 tourist (short stay) visa to attend a seven day seminar in Sydney with NuLife International.  Shortly after that visa expired the visa applicant commenced work in a Thai restaurant in Double Bay	Tpp 38, 142, 156
28 June 1999	Visa applicant's visitor visa expires and thereafter she is an unlawful non-citizen	Tp 5
May/June 2000	Visa applicant and review applicant met at East Leagues Club (sic).  At that time the visa applicant was working in a Thai restaurant as a cook.  Shortly afterwards they commence a relationship.	Tpp 6, 44, 54, 143, 160
26 October 2000	Visa applicant located by DIMIA compliance officers working at the Isaan Thai Restaurant at Eastgardens, Sydney	Tpp 5, 144
27 October 2000	Visa applicant departs Australia	Tpp 5, 38, 145
3 November 2000	Visa applicant changes her first name from Paphawadee to Krittika	Tp 79
4 December 2000	Visa applicant changes her first name from Krittika to Nutda	Tp 89
2 December 2000 – 6 December 2000	Visa applicant marries Nipon Bunmalert for the purpose of assisting her adopted brother's application for sponsorship to Germany by his German partner	Tp 39
11 December 2000	Review applicant travels to Thailand	Tp 54
27 December 2000	Visa applicant and review applicant marry in Bangkok, Thailand	Tp 145
3 January 2001	Marriage between review applicant and visa applicant is registered in Thailand	Tpp 6, 31, 39, 44, 63
14 January 2001	Review applicant returns to Australia	Tp 54
June 2001	Review applicant travels to Thailand to visit the visa applicant	Tp 145
12 June 2001	Visa applicant applies for a provisional spouse (sub-class 309) visa	Tp 31 - 53
14 June 2001	Visa applicant applies for a visitor visa.  That application is refused.	Tpp 203 – 213, 215-217
30 July 2001	Visa applicant again applies for a visitor visa.  That application is also refused.	Tpp 218 – 228, 230
18 April 2002	Visa applicant attends interview during which she states: ·     She intended to attempt to earn money in Australia ·     She paid $700 to a Thai lady for the purpose of finding work ·     She took up a job in Dubbo ·     She worked at a restaurant called The Rose Garden in Dubbo ·     She started working there the day after she was supposed to return to Thailand	Tp 127-131
30 July 2002	Review applicant undergoes angiogram	Tp 162
26 September 2002	Australian Embassy Bangkok advise visa applicant's representative that a notice of intention to refuse is to be sent to the visa applicant	Tp 173
7 November 2002	Review applicant undergoes cardiac surgery	Tp 177 - 180
25 November 2002	Australian Embassy Bangkok sends a notice of intention to refuse the visa to the visa applicant	Tp 181 – 183
4 February 2003	Respondent's delegate decides to refuse to grant the visa to the visa applicant	Tp 5-12
27 February 2003	Review applicant lodges application for review with tribunal”	Tp 3”

6.       If only by way of balance  I include part A (Clauses 1-16 inclusive) under the heading of “Facts” contained in the Applicant’s Statement of Facts and Contentions dated 31 July 2003 as follows:--

“FACTS:

A.       Visa Applicant’s history (Nutda Horwood)

1.        The visa applicant was born in Thailand on 17 November 1967.

2.The visa applicant was in a de facto relationship with Amnart Suato from about 16 May 1984 to about 23 February 1991.

3.The visa applicant had a daughter from that relationship, Angaena born 22 February 1991.  The visa applicant has custody and day to day care of her daughter who is included in the visa application.

4.The visa applicant has had several name changes due to relationships, adoption in Thailand, and religious beliefs.  These are set out in her statement to the Tribunal.  Her current name and for the purposes of these proceedings is Nutda Horwood.

5.The visa applicant travelled to Australia on a tourist visa obtained for her by her then employer NuLife International (Thailand) on 21 May 1999.

6.        The visa applicant remained in Australia until 27 October 2000.

7.The visa applicant met the review applicant (Daniel Horwood) on or about June 2000 in Sydney.

8.The visa applicant and review applicant commenced a relationship in about August 2000 when she moved into his home.

9.The visa applicant was detained by DIMIA officers on 26 October 2000 for working without permission in a Thai restaurant.

10.The visa applicant and review applicant were married in Thailand on 27 December 2000.

11.The review applicant has made several trips to Thailand to visit his wife.  The first was from December 2000 until January 2001.  The seco0nd was for three weeks in June 2001.  The third trip was from 3 May 2003 until about 14 May 2003.

12.The visa applicant made an application for a Provisional Spouse (sub-class 309) visa at the Australian Embassy in Thailand on 12 June 2001.

13.The visa applicant was interviewed twice by officers of the respondent.  The first interview was on 25 September 2001.  The second interview was on 18 April 2002.

14.      A delegate of the respondent refused the application on 4 February 2003.

15.      This application was lodged on 27 February 2003.

16.The visa applicant is currently living in Thailand with her daughter.  She is pregnant and due to give birth in January 2004.”

B.       Prior offences

1.        The Applicant had no criminal offences before she came to Australia in 1999.  She has not been charged with nor convicted of any criminal offences in Australia nor in Thailand, or in any other country.”

7.       The evidence of the Applicant was in my view acceptable.  I intend to deal with it in brief terms; however I do consider it desirable to include the content of his statement Exhibit A1 as follows:--

“I, Daniel James Horwood of 7/19 Bennett Street, Bondi, in the State of New South Wales, do hereby solemnly and sincerely declare the following:

1.I was born on 11 March 1952 in Tamworth, NSW.  I am an Australian citizen and do not have any other citizenship.

2.My mother died in about August 2000.  My father lives in Port Macquarie.  I have a brother Wayne who lives in Brisbane.  My sister Sharon lives northern NSW and sister Debbie lives in Port Macquarie.

3.I married my wife, now known as Nutda Horwood, on 3 January 2001 in Bangkok, Thailand.  My wife is commonly known by her nickname ‘Pat’.

4. I completed my education at Miller High School in 1970.  After finishing school I had a clerical job in a forklift company in Sydney.  I worked there for several months then I was employed with GKN, a scaffolding company to do clerical work.  I worked there for several months and was employed by a stockbroker, Polkinghome, for about 15 months doing clerical work.

5.I then worked in my father’s packaging business for about 9 months.  I then had a storeman’s job for about 3 months with Repco.  I left that job and had another storeman’s job for a company that manufactured neon signs for about 3 months.

6.I was employed by the Taxation Office for about two years from about 1974 doing clerical work.  I left the Taxation office in early 1976 and lived in New Zealand for up to 9 months.  I had a job for three months with a printing company in New Zealand.  I traveled around New Zealand in the other time I was there.

7.I then returned to Sydney and was employed as a taxi driver for Taxis Combined Services in early 1977 for about 9 months.  I then had a job in a printing factory for about 3 months as a general hand.  I then returned to taxi driving for 4-5 months.

8.In May 1978 I was employed by the Navy as a storeman.  In about January 1985, I successfully completed the clerical test for the public service and I was transferred to a clerical position in the Navy.  I have worked for the Department of Defence, in the Navy, ever since that time.  I now have about 7 months accrued long service leave.

9.I had a de facto relationship with Tina Tong for about 16 years from 1980.  The relationship ended in 1996.  I have not lived with anyone else apart from my wife.

10.I first met Nutda in June 2000 in the Eastern Suburbs Leagues Club.  I was with a group of friends and Nutda came over and we started talking.  I rang her the next day and we arranged to have a drink about four days later.  I started to see her every week.  In August 2000, I bought a car and started to pick Nutda up from work.  She would stay at my place and I would take her to work the next day.  Soon she had moved in to live with me.  I was unaware of Nutda’s visa situation until she was detained by Immigration in October 2000.

11.On the evening of 26 October 2000, Nutda rang me and told me she that an immigration officer was at the restaurant.  Later that night she rang me again and an immigration officer spoke with me and asked me if Nutda was living with me.  I told him that Nutda was living with me.  The next day Nutda range (sic) me and told me she had been taken to Villawood detention centre.  I visited Nutda in Villawood and took her some papers.  She left that same day for Thailand.

12.In December 2000 I travelled to Thailand to meet up wife (sic) my wife who had returned in October 2000.  Nutda met me at the airport and we stayed at a Hotel for a night.  The next day we went to the home of Nutda’s adopted mother in Bangkok.

13.We married on 27 December 2000 in Bangkok.  Nutda’s stepmother worked at a University in Bangkok and we were able to use that room for the wedding ceremony and the reception.  There were at least 50 at the ceremony.  They were mainly family and people working for Nutda’s adoptive mother.  We then went back to the same house in Bangkok.

14.We then went sightseeing to Pattaya, to an Island called Koh Samet and then returned to Bangkok.  A week later we went to Chiang Mai for a few days.  We then returned to Bangkok and then went to Phuket for about 4 days.  I made inquiries at the Embassy about a visa for Nutda but we did not make an application until Nutda had received her new passport.  I returned to Australia in January 2001.

15.I had a set of forms for the application from the Embassy but I realized that I would need further information from Nutda to complete the forms.  I was not able to return to Thailand until June 2001.

16.Whilst we were separated, we kept in contact by telephone and email.  I obtained two supporting statements for the application and returned to lodge the application in Thailand in June 2001.  I was in Thailand for three weeks and then I had to return home for work.

17.I was not well enough to travel again in 2002 so I kept in contact with my wife through the telephone and by emails.

18.In November 2002, I had an operation on my heart and that was successful.  I am on medication for my health.  I take Warfarin (an anti co-agealant) for my blood.  I take another tablet, Atehexal (Atenolol), for my blood pressure.  I will need to take the Warfarin forever in order to maintain my health.  I am not aware how available this prescription medication is in Thailand.  I have to eat low cholesterol foods and no fatty foods.  I have to have blood tests every four weeks to measure the thickness of my blood for monitoring by my doctor.  Upon checking the results of these tests my doctor may change the dosage of my medication.  Most of my medical expenses are met by medicare or my private health cover.

18.On 3 May 2003 I left for Thailand on British Airways.  I stayed in Thailand for 11 days.  In that time I stayed with my wife in her apartment in Bangkok.  We had two trips to Pattaya, and stayed overnight on the second trip.  We hired a van and we had a driver.  In my time in Thailand we went out to restaurants for lunch and dinner.  I bought her presents including perfume and a bikini.  We also went to the movies.  We also relaxed around the pool attached to her apartment.

19.      We communicate in English as I have only learnt a few words of Thai.

20.On my recent visit to Thailand I had to request meals not to be too spicy, as I could not eat the spicy meals.

21.I believe that I would have problems obtaining work in Thailand mainly due to my age and my lack of Thai.  I have been rarely unemployed however I do not have any formal qualifications and I believe that would be a problem for me in obtaining employment.

22.I have made inquiries about my superannuation entitlements in my current job with the Department of Defence.  If I left my job now, I would only be entitled to the lump sum of $89,877.00.  After tax, this is reduced to $46,549.00 of which $38,034.00 would have to be rolled over.  However, if I retire when I am 55 (in 2007) then I would receive an indexed pension of $13,534.00 and a lump sum of $82,583.00.  It would be a significant financial loss for me to leave my current employment in terms of my superannuation benefits.

23.Most of my friends live in the Sydney area and in my spare time I go out with different friends.

24.My wife is now pregnant and is due to have our baby in early 2004.  I would prefer our child to grow up in Australia due to the better education and health systems available in Australia to what is available in Thailand.  I also think Australia is generally a safer place than Thailand.

25.I miss my wife and I want to be reunited with her in Australia so that we can all be together as one family.

And I make this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended, and subject to the penalties provided by the Act for making false statements in Statutory Declarations, conscientiously believing the statements contained in this declaration to be true in every particular.”

8.       I intend to deal with the evidence of the Visa Applicant in considerable detail; as a starting point I include the content of her statement Exhibit A4 as follows:--

“Statement of Nutda Horwood

I, Nutda Horwood of 24/1 Phusadee Mansion Sukhumvit 68 Bangna, Bangkok, Thailand, do hereby solemnly and sincerely declare the following:

1.I was born on 17 November 1967 in Maha Sarakham, Thailand.  I am a citizen of Thailand.

2.My birth name was Uraiwan Wannasaeng.  My nickname is ‘Pat’ and my friends often use my nickname when referring to me.

3.I had a car accident changed that name for good luck on 6 November 1990 to Amara Wannasaeng.  This happened after a car accident so I changed my name for good luck.

4.I was in a de facto relationship for seven years with Amnart Suato.  We had one child, Angaena.  My daughter Angaena Suato was born on 22 February 1991.  Her name was changed to Somphassorn on 22 March 1999 as her first name was said to be bad luck.  The relationship was from 16 May 1984 to 23 February 1991.  Our relationship broke down because Amnart wanted a son, not a daughter.  I also learnt that he had a relationship with another woman.

5.My business was not going well so I went to consult a monk.  The monk advised me to change my name.  I changed my name to Paphawadee Wannasaeng on 18 September 1995.

6.I did not know my real parents and I met Mrs Iamwong through some Chinese friends.  Mrs Iamwong offered to adopt me into her family and she was able to look after my daughter.  Later in 1995, I was adopted by Mrs Iamwong and then changed my name to Paphawadee Iamwong.  This was the name on my passport for travel to Australia.

7.I was working for a company called Nu Life International (Thailand) Co. Ltd in their sales department in Thailand.  That company offered to sponsor me to go to a seminar in Australia that was about how to promote business and improve your business skills.  The company paid all my travel expenses and arranged the ticket and visa for me through the Australian Embassy.  I understand the company arranged for up to 122 people to travel to Australia as a group.

8.The purpose of the seminar was to learn about making money in sales.  It was not about making money in Australia.  In an answer to a question in an Immigration interview on 18 April 2002, my answer to the question ‘What was the purpose of your visit to Australia?’ (T128) was I realise ambiguous in interpretation.  My answer was intended to mean that ‘I went to Australia with a tour group to attend a seminar to show me how to earn more money’..  It was nothing to do with earning money in Australia, as I was working for a Thai company.

9.I had been working in Laos shortly before the trip to Australia and so I only collected my passport with the visa in it at the airport from a representative of the company before travelling to Australia.

10.I attended the seminar in Australia from 27 May 1999 and then told the company representatives that I would like to stay on longer to see some of Australia and do some shopping.  They told me that I could not have my return ticket.  I went shopping in the Kings Cross area with a person I knew and one day I tried to get money from an ATM but I could not get any money.  I then realised that I needed more money in order to pay for the return ticket and a Thai person offered to help me get some money.  I was taken to the Rose Garden Thai restaurant in Dubbo where I worked for 2-3 months.  The owners of the restaurant held onto my passport and did not pay me money as they had told me they would.

11.I returned to Sydney with a friend and I found work in Thai I San Thai Restaurant in East Lakes where I was able to save some money that I needed to make arrangements to return to Thailand.

12.I first met Danny Horwood at the Easts Leagues Club in about June 2000.  I was there with some friends and he was at the Club with some of his friends.  We talked and were interested in each other so we continued to keep in contact.  Soon I was spending more and more time at his place and then in about August 2000 I moved in with Danny.

13.I did not discuss my immigration problems with my husband until after I was detained.

14.I was detained by immigration officers after they raided the restaurant and I was taken to Villawood detention centre.  In the center, I rang my husband Danny and he came out the next day with some papers for me.  I then left for Thailand as soon as I could which was the next day, 27 October 2000.

15.I spoke to a monk about the problem I had in being detained in Australia and the monk told me that I should change my name for better luck.  I changed my name from Paphawadee Iamwong to Krittika Iamwong on 3 November 2000.

16.On 20 November 2000 my child adoption by Mrs Nartticha Iamwong was cancelled because Mrs Iamwong was upset that I had problems in Australia using the name Iamwong..  I was adopted by Mrs Vanlapa Nualboonruang who was a friend of Mrs Iamwong.  I changed my name to Krittika Nuanboonruang.

17.My adopted mother had two sons.  One son was a transsexual who wanted to be sponsored by his partner to Germany.  However, the paperwork to the German Embassy did not disclose my adoption so my adopted mother told me to ‘marry’ a man, Nipon Bunmalert, so that my name became Krittika Bunmalert and therefore was no longer listed in the family.  I never had any relationship with him and I did this because my adopted mother told me I had to do it.  I obeyed her request to help her son’s application.  We then divorced and my name returned to Nutda Nuanboonruang.  On 4 December 2000, I changed my name from Krittika Bunmalert to Nutda Bunmalert.

18.Danny came to Thailand in December 2000 and initially we stayed at the home of my adopted mother in Thailand.  We decided to get married and we were married in Thailand on 27 December 2000.  We traveled around to a few places but Danny had to return to Australia.  We decided to lodge a spouse visa application later when Danny could return to Thailand.  Danny returned to Australia in January 2001.  After my marriage to Daniel Horwood, my name became Nutda Horwood.

19.Danny came back to Thailand in June 2001.  We completed the application for a spouse visa and this was lodged at the Australian Embassy in Bangkok on 12 June 2001.

20.I remember that originally I was given an interview date in December 2001 but I wanted to get the case decided earlier because Danny was sick with a heart condition and he needed me to help look after him.  Immigration agreed to change the interview to September 2001 and I was interviewed by two Thai speaking officers who typed into their computer as the interview happened.

21.I was not told what they typed.  They did not ask me to check that they had recorded my answers correctly.  I asked if I could check the answers they were typing, but the officer said to me “no, you don’t have the right to check the answers.  You have to answer the questions.” And “Don’t ask so many questions or we will not interview you.”   I did not ask any more questions, as I was afraid my case might be refused.

22.In the interview I was asked about how I went to Sydney and who paid for the trip.  I answered that I went with my company who paid for the trip.  I told them that I wanted to stay till the end of the month to visit people but I ran out of money and was unable to afford the return ticket.  I told them that I went to Dubbo and worked in a restaurant but was not paid and that I then returned to Sydney to earn money to pay for my fares and expenses.

23.I was not interviewed again by Immigration until 18 April 2002.  That interview was with an Australian staff member and there was a Thai interpreter.  The interviewer made written notes during the interview but she did not ask me to check the accuracy of what was written by her.  In that interview I explained that I was given my passport at the airport in Bangkok.

24.     I was never interviewed by Immigration officers on 20 December 2001.

25.Whilst my husband and I are living apart we keep in regular contact by telephone and email.

26.I now work in an import/export business that is a family business.  I earn about 50,000 Baht a month.  This is just over A$1760.00 on current exchange rates.  I am also trying to develop an import/export business with an Australian business partner.  This involves exporting Thai food products to Australia for Thai restaurants in Australia.

27.I live in my house with my daughter who is now 12 1/2 and going into year 7 in August.  The apartment is my own.  I own four apartments.  Two are rented; one is currently empty and I live in the other.  I have no other immediate family.

28.I am now pregnant and my baby is due in early 2004.  Our child will be an Australian and I want my child to have the benefit of the better health and education systems in Australia compared to Thailand.  I also want to be able to live with my husband and children together.

29.This statement was read to me and I agreed with its contents before I signed it.”

9.       In respect of the first interview in December 2001, the text of the actual interview has been taken from the Departmental database and reads as follows:-

“1.       M/c registered in TL on 030101.

PA has one previous rel with 1 daughter (almost 11 yrs).  Previous rel ended since her daughter was born (Feb’91), confirmed while she still in hospital having her baby.  PA had been employed with New Light International when came to apply for a visitor visa.  676 granted as a group, visa approved for 122 applicants.  Only 2 stayed on, she was one of them.  Purposed to attend seminar for 1 wk.  Stayed with the group and had a friend who knew Thai restaurant and suggested her to work.  Said low salary with 1 child not suffice to afford so decided to stay and worked as a kitchen hand in Thai restaurant, first restaurant “Rose Garden Restaurant” in Dubble,(sic) said near Gold Coast.  She did not plan when applied for seminar.  Paid money to the Thai person in A/a who knew Thai restaurant, it’s a she and met her only once.  Said paid A$1,000.  The 2^nd restaurant was in Sydney area.  PA was located by Immigration, stayed over 1 yr.

Said her ppt with the group, not given to her.  No formal document while met sponsor but did not tell him.  Using emergency doc when departed A/a.  Met sponsor through her A/a friend for 7-8 mths before staying together, said stayed together for 3 mths before she was located.  She was in Villawood for 1 night before her departure.  ICSE shown in A/a 280599-271000.  Sponsor arranged for her air tickets so she could leave quickly.

Sponsor is 49 yrs now, has now been working as a navy for 23 yrs.  He has no previous rel.  They have no children together.  While in A/a before her departure they had lived at 7/19 Bennett Street Bondi.  It was a flat, her sponsor rented.  He worked M-F 8am till 5:30 pm.  Some saturdays he had to work.  He only needed to travel in lands due to his heart problem.  Met his younger brother and his younger sister.  His mother was unwell when they first met and now she passed away.  She passed away during 2000.  Only talked to his father, sent cards but never met.

Her daughter currently in VN to study English (low cost and she has friend whom they can stay with).  Her previous de facto spouse has to financially supported her child till she reaches 22 yrs (through court order).  Said he was force to pay 1,500 baht per mth.  She collected from the Thai authority not directly fm him as she has file against him and he was force to pay.(sic)

Sponsor visited twice, first in Dec’00 stayed 5 wks (marriage ceremony held during this trip) and second trip in Jun'’1 stayed 3 wks.  They corresponded through e-mails.

Before her departure to A/a as visitor she had an adoptive parents so her daughter would be looked after by them.  Said known her adoptive mother when she tried to see her Thai de facto spouse.  The lady felt sorry for her and took her in her home (formal adoption papers provided).

Her sponsor now lives alone, works during the week and has to do housework during weekend.  He has problem with heart, cannot exercise, no hard work.  Had to go to hospital while in TL (Jan’01) stayed only 1 night.

Final decision to be made upon checking through EOR. Ws250901).”

10.     The Visa Applicant was interviewed by the Australian Embassy on a second occasion, in April 2002.  The interview record appears at T29 (Tpgs 127 to Tpg130 inclusive) and is set out in full as follows:-

“File number 2001/08728

Ms Nutda Horwood present at interview:

Ms Winjimongkolsin acted as interpreter:

Ms Dalton conducted interview:

The purpose of this interview is to as (sic) you some questions about your first entry into Australia

Do you understand?

Yes

It is important that you do not make up answers that you may think I want to hear.  Just answer the question truthfully and if you do not know something please say so.  Do not make up an answer.  If you do not understand a question tell me & I will explain it another way.

If you have a problem with the interpreter tell me.  If you understand my question in English you may answer in either Thai or English which ever is easier

Do you understand?

Yes

It is important that you are aware that the provision of false or misleading information including at this interview may result in your application being refused.

Do you understand?

Yes

Do you have any questions?

No

Asked & Answered:

Have you ever been known by any other names?

Yes – many names I have changed my name many times.

How many times?

7 times

[Asked PA to write down all names known as – attached to IV record]

What was the purpose of changing your name so many times?

Family reasons – when I got married & when I got adopted.

When were you adopted?

5 years ago

Why?

My friend loves me and wants to adopt me

When I look at these names I notice that you never used the family name of your ex-defacto, is that correct?

Yes

How many times have you been to A/a?

Once

What was your occupation prior to going to A/a?

I was a salesperson

What is your occupation now?

I am a housewife – my husband pays for me

What was the purpose of your visit to A/a?

I went with a tour group to attend a seminar to show me how to earn more money in A/a

Do you mean earn money in T/I or A/a?

If I earn more money in A/a I think I will not come back to Thailand.

How did you apply for your passport in T/I?

The tour agent did it for me

Did you apply in your name at that time or a previous name?

My name

How many times did you apply for visa to A/a?

Three times – one time it was granted

What name did you use when you applied for a visa?

Nutda Horwood & my adopted name Papawdee Eamwong (sic)

Did you attend an Interview/ did you go to the Embassy?

No tour agent did all the work for me

Why didn’t you apply for the visa yourself?

Because it was a part of the tour contract

Who arranged this visa?

The tour company I don’t remember their names

Did you know what the visa was for, visitor/worker/student?

No they gave me the PPT with the visa in it at the airport

Did you read the visa label?

Yes

How much did this cost you?

Nothing – part of the tour

How could you afford this money?

My company paid for it as a part of my bonus

Where did you go in A/a?

2-3 days in Sydney.  Then went to the Gold Coast until the last day of the tour.  I decided not to go back to T/I because I had a phone number of someone who could help me get work.  I left the group and caught a bus to Sydney to see a lady called “Joy”.

What is her full name & address?

I don’t know – she just called herself Joy

How did you know her?

A friend told me about her & gave me her contact number.

What is your friend’s name?

Nid

What is her full name & address?

I don’t know I lost contact with her

What was the phone number that Nid gave you to contact Joy?

I don’t know I don’t have the number anymore

Tell me about Joy – is she Asian?

Thai lady about 50 years old that’s all I know

What did Joy do?

I had to pay her $700 and that I could start work – she would find me some work to do.  The job was in a restaurant and I would get $400 pw plus my accommodation

What is Joy’s address?

I don’t know I met her at the bus station when I arrived in Sydney.  She knows me because I look Thai.  Her husband drove us to her home

Where does she live?

In “Woowood”?(sic)

Whereabouts in Sydney is that?

I don’t know.  But its about 30 minutes from the Sydney Harbour Bridge

What happened then?

They arranged for me to go to a job in Dubbo, then I was met by the Restaurant owner and asked to work in a Thai restaurant

What was the name of the owner?

I don’t know – I think her name was “Mem”

What was the name of the restaurant?

The Rose Garden

Did you work there?

Yes – I started working there the day after I was supposed to go back to T/I.  I worked there for a while but they didn’t pay me at all.

How did you survive?

They gave me meals and they had accommodation.  People gave me tips.  So

What happened then?

I got in contact with Joy who told me she could get me another job – when we went to the Restaurant – the restaurant owner said that Immigration had just been so it would be OK for a while.

What was the name of this Restaurant?

I don’t remember because I didn’t work there very long

Where was the restaurant? (sic)

I don’t know?

Were you offered any other work opportunities besides in Restaurants?

Yes – I was offered a job as a prostitute but I didn’t take it – I only worked in restaurants

Why were you working in the restaurant for a short time?

Because I met my husband and I went to live with him

When did you meet sponsor?

Sometime in year 2000 – I don’t remember the exact date.

Have you told me everything about this matter?

Yes.

Mrs Horwood was advised that this had an effect on her application to migrate at the beginning of the interview, that she was being considered under s501.  I reminded her of that & advised her that the next stage of the application will involve her being considered against the criteria relating to S.510 and that she would be advised at a later date of the 501 consideration.”

11.     There are some matters of a general nature which can usefully be mentioned at an early stage and because it is convenient when considering the evidence to have regard to them.

12.     As can be seen from the Respondent’s Statement of Facts and Contentions, the Visa Applicant changed her name on a number of occasions; in general terms those changes related to her first name but in other cases (where she was adopted or married) to her surname.    Her name changes were made in general terms on advice from a monk and for the purposes of improving her luck.  That this occurred so often in relation to a woman of some education, with some considerable achievements and with considerable means may appear unusual, but I accept that these changes were not (subject to one exception referred to later in these reasons) motivated by considerations of an ulterior nature.

13.     As the case evolved it became relevant to consider just how much English the Visa Applicant has.  The Applicant speaks no Thai.  However they were apparently able to converse when they first met and especially after they started living together.  Towards the end of the fourth day Mr Murphy took the unusual step of asking her some questions in English and which she answered with reasonable ease.  Of course those questions were asked in February 2004 and her level of facility in English may not have been as great at earlier times.

14.     As the case progressed the level of the Visa Applicant’s education, accomplishments, and means became increasingly relevant.  It would seem that she was educated to the stage of the equivalent of a school leaving certificate in Australia, although part of her studies were undertaken on a part-time basis at night. 

15.     The evidence indicates that she is a business woman of very considerable ability.  At this time she owns four apartments, two in Bangkok and two just outside Bangkok.  One of those apartments cost five million baht (and the exchange rate has varied between 25 and 30 baht to the Australian dollar).  The cost was first expressed as one million baht but the Visa Applicant then explained that in Thailand the seller will often understate the sale price to avoid taxes.  Mr Murphy explained that in Thailand the seller bears the tax in contrast to Australia where the purchaser bears the tax.  He was correct of course if she was referring to stamp duty but it would seem that she was referring to taxes on capital gains or perhaps taxes on financial gains.  The other three apartments all have substantial values.  When the Visa Applicant gave evidence on the third and fourth days, she did so from Laos and in which country she is the 25 per cent owner of a cattle and dairy farm.  The value was never stated but it would appear to be considerable.  Mention was also made during the hearing of businesses in which she was involved; she owned or was a partner in an export/import business, which was closed some three months ago when an Australian associate died.  She has in the past been a successful money lender, although there was no evidence as to where the capital for that business was derived. 

16.     She was, before she went to Australia, an employee of NuLife International (“Nulife”) selling its health care products.  She was indeed a very successful salesperson and so much so that she was rewarded with trips to seminars in various countries and including Australia.  Those all-expenses paid seminars would apparently include lectures, in broad terms designed to motivate the sales person and would also include site seeing and travel.  Before coming to Australia for the Australian seminar in May 1999, the Visa Applicant had been on a number of similar visits to other countries.  The Visa Applicant was also, before coming to Australia, employed by another firm, called Supradem.  She subsequently and at a later stage of her evidence said, that in relation to both NuLife and Supradem her employment was not of a full-time nature. 

17.     Of the four apartments, she owned three before coming to Australia while one was acquired after she returned to Thailand.  The Visa Applicant has a daughter Angaena Suato (“Angaena”) who was born in Bangkok in February 1991 of a relationship to Amnart Suato (“Suato”).  After that relationship broke up she was able to obtain some small financial support from Suato for Angaena but which was minimal in relation to the substantial school and boarding school fees referable to Angaena and which she was paying at the time of her arrival in Australia and thereafter.  Since her return to Thailand, the Visa Applicant has visited a number of countries in connection with her import/export business; those countries include inter alia, South Africa and Singapore.  The evidence of the Visa Applicant was often unsatisfactory in the sense that questions were not answered or answered in part only or answered inconsistently.  The Visa Applicant is at this time a woman of considerable means; her properties and including her farm interest have a combined value of some hundred thousands of Australian dollars; (this is an estimate based on the apartment values referred to later in these reasons).  She was a woman of considerable means, although perhaps not as extensive, before she arrived in Australia.  How she acquired so substantial an estate especially when she appears to have been burdened almost entirely with the not inconsiderable cost of supporting her daughter at boarding school, is one of the many mysteries in this case.  As will be noted there were aspects of her evidence which were clearly untrue.  It is possible of course that her evidence as to means was also not true but this does not seem to be likely.  The Applicant, who knew nothing of her affairs, knew of the four apartments and of the import/export business.  Nor is she inexperienced as regards travel; she travelled extensively before and after coming to Australia.

18.     When the hearing first commenced the Visa Applicant was pregnant and her baby was expected in January 2004.  A miscarriage (if that is the correct term) occurred early in January 2004.

PART B - THE EVIDENCE OF THE APPLICANT

19.     As I have noted the evidence of the Applicant can be accepted.  He was described by Mr Murphy as simple; I added the word “passive” and Mr Murphy agreed that this description was not at all inapposite.

20.     The Applicant is now 52.  After completing his education in 1970 he had a variety of jobs none of which was enduring and none of which could be described as anything other than low-level, for a period of about 15 years thereafter.  In 1985 he obtained work as a clerk in the Department of Defence in the Navy and has been there ever since.  Clause 23 of Exhibit A1 indicates that if he left his employment now his superannuation benefits would be significantly less than they would be if he retired at the age of 55 in 2007.

21.     The Applicant met the Visa Applicant in June 2000 at the Eastern Suburbs Leagues Club; she moved in with him in August 2000 and they lived together (communicating in English) until she was detained in October 2000.  He knew nothing whatsoever of her illegal status.  (The Visa Applicant confirmed, and I accept, that this was so).

22.     The Applicant has visited the Visa Applicant in Thailand on three occasions; on the first occasion he stayed in Thailand for about five weeks.  He first travelled to Thailand in December 2000 and they were married on 27 December 2000 at the University and at a reception at which about 50 people were present.

23.     The T-documents contain documents and certificates as to the Applicant’s medical condition. However the Applicant said that following a successful heart operation in November 2002 his health is reasonably good.

24.     Thailand is not in all respects suitable for the Applicant as a place in which to live.   It is too hot, he does not speak the language and he does not think that he would be able to obtain work in Thailand.  All of this was said in evidence at a time before the extent of the Visa Applicant’s means was revealed.  Having regard to the Visa Applicant’s extensive means it would seem that the Applicant would not need to seek work.  He said also that if the decision were affirmed he would spend time (and he has lengthy accumulated long service leave due to him) with his wife in Thailand.

25.     Before meeting the Visa Applicant, the Applicant had a long (16 years) relationship with another woman (Tina Tong) which in the end broke up.  He has lived in the same rented flat in Bondi for many years and as Mr Murphy puts it, ”enjoys a few beers with his mates at the Leagues Club”. The Applicant described himself as having little education.  He has in fact lived with the Visa Applicant for a few months altogether in point of time.  This includes three months in Australia where her hours of work were such that they did not see much of each other.

26.     I should add as to the Applicant’s evidence that I accept that at least on his side the marriage is genuine.  He denied suggestions put to him that the Visa Applicant married him in order to obtain Australian residence for herself and her daughter.

27.     As to his health, he said that in November 2002 he had an operation to cure his problem, which was that he was born with two rather than the usual three leaves in one of the valves of his heart.  The operation was successful.  He has blood tests every month in order to monitor the dosages of the medicine, which he takes.

28.     In speaking of the Visa Applicant’s export/import business he said that in the previous 10 months she had travelled to South Africa, Korea, China, Japan, Hong Kong and Singapore.  When asked what would happen to the business if she came to Australia, he answered that he was “not too sure.  She has a friend who works here while she runs the Thailand end”.

29.     The Applicant said that he would spend some months of his long service leave in Thailand to see whether he liked it there.  If he liked it and if he lost his job he would consider staying there.  (No mention was made at this stage of Laos where apparently the Visa Applicant is now living).

30.     As to the Visa Applicant’s business interests, he spoke of the four apartments and the export/import business and of the dairy farm in Laos but in relation to the latter in the past tense, on the basis that it preceded the export/import business.

31.     When asked what he knew of the Visa Applicant’s daughter he said that he heard about her for the first time about a month after he met the Visa Applicant.  He said that he was told by the Visa Applicant that her daughter was being cared for by a step-mother.

PART C – MRS L BROWN

32.     I deal with the evidence of Mrs Brown for the sake of completeness.  She is a friend of the Applicant and met the Visa Applicant in her home.  Contact with the Visa Applicant was limited while she was in Australia and has been even more limited, and to telephone calls (limited in particular because the Visa Applicant’s English is basic) made occasionally thereafter.

33.     Mrs Brown did not know of the Visa Applicant’s illegal status.  In general terms her evidence was of little assistance to the Tribunal.

PART D – THE EVIDENCE OF THE VISA APPLICANT – FIRST HEARING DAY

34.     The Visa Applicant was born in Bangkok on 17 November 1967.  She never met her natural parents and up to the age of 15 was brought up by a Chinese family.  When they moved to the United States she did not accompany them because she had a boyfriend (Suato).  He left her in 1991 when she gave birth to a daughter and because, so she said, the child was a girl.

35.     She went to high school on a full time basis in 1982 and 1983 and thereafter went to night school.  Her first job was in a department store and where she sold and promoted various products in various departments.  She stayed in this job until five or six years after her daughter was born.

36.     After leaving school the Visa Applicant always worked.  Mention was made of various companies, culminating with NuLife and where she was working in 1999 when she went to Sydney.  She said moreover that at that time she had two jobs, one with NuLife the other with Supradem.  She was with NuLife from 1998 to 1999 and with Supradem from 1991 to 1999.  Both jobs were sales jobs on commission.  NuLife increased in size and she travelled to Vietnam, Laos, Hong Kong and Malaysia in groups on behalf of and sponsored by NuLife.  The groups were small for the most part except that the group travelling to Sydney in May 1999 numbered 122.

37.     The seminars were for employees of NuLife to encourage profitability and sales.  NuLife has branches in various parts of the world.  Its head office is in Hong Kong or Thailand (and both places were mentioned) and the chief executive is someone from Hong Kong who lives in Thailand.

38.     When she went on these trips her daughter was placed in boarding school for which she paid.  The child’s father never came to see her and pays minimal monthly maintenance in accordance with a garnishee order issued by the court.  The cost of the boarding school inclusive of school fees and books is about eighty thousand baht per annum.  She, the Visa Applicant, earned about 100,000 baht per month from commission in aggregate from both of her two jobs.

39.     The Visa Applicant came to Australia in 1999 at a time when, so she said, she did not even know where Australia was.  She knew that the trip would be for seven days.  When asked why she stayed for 16 months doing menial work in a restaurant she said that she did not know it was illegal to remain in Australia after her visa period had expired.

PART E – THE SECOND HEARING DAY

40.     There was no evidence by the Visa Applicant on this day because she had been involved in a car accident.  Brief evidence was given by the Applicant.  In particular he denied that the Visa Applicant married him in order to procure residence in Australia for herself and her daughter.  There was other evidence (of a hearsay nature) as to actions by the Visa Applicant before he met her.

PART F – THE THIRD HEARING DAY

41.     The Applicant gave brief evidence as to the manner in which he communicates with the Visa Applicant.  Exhibits A5 (a batch of phone cards) and Exhibit A6 (a batch of postcards and cards) were tendered.

42.     The Visa Applicant then resumed her evidence-in-chief.  She gave evidence firstly as to the loss of her baby caused by a fall from some steps.  The Visa Applicant said that she knew that the seminar was for seven days only.  She also said that she had a visa for one month.  When asked why she did not go back at the end of her month, she said that she could not do so because she did not have the airfare.  NuLife had furnished a return ticket but the supervisor, employed by NuLife, gave her only her passport and not her air ticket.

43.     It was at this time that a friend (unnamed at that time but presumably “Ann”, referred to later in these reasons) asked her to go travelling.  She went shopping at David Jones and she went to Kings Cross and bought souvenirs.  She said that she wanted to go back to Thailand and was taken to buy an air ticket, only to find that she did not have the 1200 dollars needed for this purpose.  She was then asked why she did not draw out money held by her in Thailand.  She said that she couldn’t use the ATM (and she had an ATM card) because it was in English; she said also that she didn’t want the friend accompanying her to see the ATM screen.

44.     The Visa Applicant was then asked what she did to regularise her position.  One of her friends (also unnamed at that time but presumably Joy) said she could find her a job to enable her to earn the necessary money.  It was in this manner that she went to work in Dubbo in a Thai restaurant, washing dishes.  Not only did the Thai owner not pay her anything at all but also her passport was taken from her “for evidence”.  Moreover she was provided with only one meal per day consisting of bread and milo.

45.     I interpose this recital of the evidence in order to note that as the evidence subsequently revealed, the Visa Applicant was already a woman of considerable means, an experienced traveller, and a successful woman of business.  The Tribunal was asked to believe that she could not obtain money then or thereafter from any ATM (although numbers do not differ), had no money, no passport, no return ticket and moreover did not know how to use a telephone in order to phone the Thai Embassy or a bank in Thailand to get help and whether of a financial nature or otherwise.  She was held on the contrary as a virtual slave in a restaurant in Dubbo washing dishes for no money and living on virtually prison rations (although milo may not be usual in prison).  Subsequent evidence revealed that in fact Ann, the friend who persuaded her to stay, also went to Dubbo.  In fact Ann is apparently still in Australia.  The friend (Joy) who found them the job (if “job” is an apt description) in Dubbo extracted 700 dollars from them for doing so or perhaps each of them paid her 700 dollars for finding them the situation.

46.     The Visa Applicant then went on, although as something of an afterthought, to say that although she received no money whatsoever for working in the restaurant, she did receive tips.  (This is unlikely; kitchen-hands may share in the pool of tips as part of an arrangement for this purpose, but do not, unlike waiters receive tips directly from members of the public and if the employer refused to account for wages the employer would surely have refused to account for tips).

47.     The alleged tips were enough, so she said, to get her to Sydney and where they (she and Ann) went after three months in Dubbo.  There, Joy who got them the Dubbo job (and extracted 700 dollars for doing so) got them another job in another Thai restaurant in Eastlakes.  The Visa Applicant started in the Eastlakes restaurant as a dishwasher and after a period became an assistant chef and then a chef.  And she stayed there until she was detained and deported in October 2000.

48.     The Visa Applicant was asked whether when she arrived in Sydney she owned an apartment or apartments in Bangkok.  She said that she had bought and paid for one apartment but that it was registered in her name thereafter.  She referred to the Thailand year of purchase as 2539 and the year of registration as 2544.  Subsequent evidence revealed that she had three apartments and it is unnecessary to attempt a translation of these years into Australian years assuming, as I was told that 1962 can be equated to 2505.

49.     She then said that in October 2000 before being detained she contacted the Thai Embassy to obtain a travel document.  Mr Murphy subsequently argued that if she were detained and then deported to Thailand very shortly thereafter she must previously have acquired an air ticket and a travel document.  Mention was made of the fact that this may have occurred as much as one or even two months previously.

50.     Evidence then followed as to her meeting with the Applicant followed by her move into his home.  After this happened, he took her to work..  He ate alone in the evenings because he came home long before she did and then came to fetch her at the restaurant.  They conversed in basic English.  (Brief mention was made of the fact that at least in the beginning of their relationship they may have had some assistance in translation in that they went out with someone who spoke both languages).

51.     In October 2000 she was apprehended by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) and taken to Villawood.  An officer walked in to the restaurant and asked for identification.  She said, “I hadn’t got my passport and I overstayed and I got caught”.. She also said that she had already made arrangements to acquire an air ticket and a travel document.  She said, “I already got the ticket.  I saved my money and I contacted the Thai Embassy.  I wasn’t sure if I was going to stay and if Danny will love me or not”.  There was no evidence before me as to the time of acquisition of either the air ticket or the travel document and indeed, it would appear that they were acquired after and not before detention.  The Visa Applicant said also that DIMIA took her ATM card from her.

52.     When asked why she had postponed going back to Thailand she said “I postponed because I was in love with Danny – so I stay a bit longer”.

53.     After returning to Thailand and after being adopted by another adoptive mother she entered into a marriage with a man named Nipon Bunmalert (“Nipon”).  She did so in order to help her new family.  Help was needed in order to obtain permission for a son to get into Germany in order to join his same sex partner in that country.  She said “my adoptive mother did this so that there wouldn’t be any more names in the family book”.  She divorced Nipon in December 2000 and married the Applicant on 3 January 2001; (the Applicant said that they were married on 27 December 2000). 

54.     The Visa Applicant had said that while she was in Australia for 16 months her daughter stayed at boarding school.  She had prepaid the school fees in advance for 12 months before she left.  As to the remaining period of approximately four months, the school was prepared to wait for payment.

55.     Before applying for a spouse visa, the Visa Applicant applied for a tourist visa, which was refused.  (Tpg203).

56.     The Visa Applicant was interviewed at the Embassy for the second time in 2002; (the interview record has been set out previously in these reasons).  She said that she thought that the interview occurred in August 2002 but when it was put to her that it was earlier she said that she was not sure.  (The month was in fact April 2002).  The interview was conducted by two women (one called Wandee).  She said that when she asked to be able to check what had been recorded, the Embassy ladies threatened to stop the interview.

57.     By this time, so she said, she knew based on what she had heard in the waiting room that she might have a problem as to the character test.  In respect of the second interview notes, she was shown the handwritten page which contained all of her various name changes but she was not allowed (so she said) to see anything else.

58.     After returning to Thailand the Visa Applicant earned money as a moneylender.  It was at this stage that she said that she paid one million baht and eight hundred thousand baht respectively for the apartments in Bangkok and six hundred thousand dollars for each of the apartments outside Bangkok.  This evidence was then altered so as to reflect five million baht as the cost of the more expensive of the two Bangkok apartments.  When asked how she made so much money she answered simply that she did so by lending money and by working.  She said that she had never borrowed to buy the apartments.  Of the apartments the most expensive one was bought after her return to Thailand; the others were all bought in 1996 and being a time before her arrival in Australia.

59.     The Visa Applicant then said that she has a business in Laos and being the farm.  The export/import business was closed some three months earlier.  She is currently living in Laos.

60.     The Visa Applicant then gave evidence as to email and telephone communications with the Applicant.  She said that her daughter who is with her in Laos communicates with the Applicant in English.

61.     When asked what she would do if the decision were affirmed she said, “I hope I will be successful and everything I have said is the truth”..  She was asked why she couldn’t live in Thailand where she is doing well and she said she wanted to go to Australia because her husband is there and she wants to look after him and because his health is bad.

PART G – THE VISA APPLICANT’S CROSS-EXAMINATION

62.     The Visa Applicant agreed that she went to a number of seminars sponsored by NuLife; she was given these privileges because she made “a big budget”.

63.     The Visa Applicant said that she asked for her air ticket but the NuLife group supervisor refused to give it to her because it would be needed when she left Australia.  She did not leave with the group because she wanted to travel longer and she thought that she would be able to buy her own air ticket.

64.     The Visa Applicant said that she told NuLife she would be staying longer in Australia; as for Supradem there was no need to tell them anything because the employment by Supradem was casual only.

65.     She was referred to Tpg128 and asked whether she had said that she decided to stay in Australia to earn money.  She denied that she said so.  She said in fact that she would stay in Australia if she could earn more money in Australia and went on to say “and I think I earn more money in Thailand” (Tpg128 indicates also that she said that her occupation is now that of a housewife and that “my husband pays for me”; he does not).

66.     It was at this stage that the Visa Applicant said that with three apartments and a farm she couldn’t get money from Thailand because she couldn’t use the ATM or the telephone.  In addition she didn’t know where the Embassy was.  When asked whether she was concerned about her daughter, her answer was “my daughter is in boarding school – I didn’t have to worry about her”.

67.     It was then that it emerged that it was Ann, a member of the group who induced the Visa Applicant to stay in Australia (Tpg156).  She said that the seminar did not allow her to “look around”; (it included a trip to the Gold Coast).  It emerged also that the seminar was partly in Thai and partly in English.  She was asked how she could attend the seminar but not use an ATM; her answer was that she couldn’t read English.

68.     The Visa Applicant denied that she knew that she was not allowed to work in Australia.  Moreover she said that nobody ever told her that it was illegal for her to stay in Australia after her visa expired.  When asked whether no one at the seminar had told her how to use a phone, she replied by saying that she went to Kings Cross to buy a phone card and paid 20 dollars and then found that she had received an empty envelope.

69.     After “escaping” from the Dubbo restaurant she did not contact the Thai Embassy because she did not know where it was.  She admitted that at this stage she knew how to use a telephone.  When asked why she didn’t phone Thailand for money she said “Nobody in Thailand can withdrew money for me.  I have to do it myself”.

70.     It was put to the Visa Applicant that she had said at the interview referred to in Exhibit R1 that she knew the Applicant for seven or eight months before she moved in with him.  She denied that she had said so.

71.     The Visa Applicant was then referred to Tpg156, a letter dated 8 August 2002; she again contended that she did not know it was illegal for her to stay in Australia after her visa expired.  Tpg156 reads as follows:-

“My name is Nutda Horwood.  I was born on 17 November 1967 and am 34 years old.  My address is 48/152 Village 6, Tambol Prachathipat, Amphoe Thanyaburi, Patumthani province, 12130; telephone number 01-4105064; passport number J469776 issued in Bangkok, Thailand on 20/06/2001, expiring on 19/06/2006.  I am an employee of NuLife International (Thailand) Co. Ltd. In the sales department.

On the 27/05/1999 I went to the company seven-day seminar in Sydney, for which the company paid my expenses, including return airfare.  After the seminar, my friend who went with me invited me to stay longer [as] she knew someone here.  My friend and I asked the company for the return portion of our tickets, but they refused to give them to us.  We travelled to meet the person whom my friend knew and after meeting him/her, he/she took us shopping for 1 – 3 days.  He/she arranged to buy the return tickets for us, saying the cost of each ticket was $1200.  My friend and I didn’t have enough money, so he/she said that he/she could help by finding us some work to do, in order that we’d have money to buy the ticket back to Thailand; however we also had to pay an additional $700 as a job-finding fee.  After that, he/she sent us to work at a Thai restaurant in Double [Bay?].  We worked for a month, and then the restaurant owner asked for our passports and we worked for three months [altogether], but didn’t get any wages.  My friend got in touch with the person who found the work for us in the first place, and he/she took us back to Sydney again, saying that he/she had find new work for us.  My friend and I asked for our passports back from the restaurant owner, but he/she refused to give them to us.  We asked the person who had found us the work “What will we do without our passports?”.  He/she said “Never mind.” When we arrived in Sydney, he/she took us to work at the Thai Isan Restaurant.  So far, I hadn’t saved enough money to pay for a ticket.  I continued worked at the restaurant, and got to meet more Thais who became friends.  Later, on my day off, my friend took me to IS [East?] Club in Bondi.  In June 2000, my friend introduced me to Danny Horwood, and we have been in touch ever since, and are now very close.  I love him very much and am very happy with him.  I decided to live with him at his home and we lived together very happily.  We understand each other well, but Danny did not know that didn’t have a passport, because we’d never discussed the issue – when I lived with him, I loved him so very much that I didn’t want to leave him.  In October 2000, I was deported to Thailand by Australian Government officials.  For the whole time that I had worked in Sydney, I never realised that I had broken the law of this country – I can neither read nor write, and I can only speak a little English – the person who found work for me had never told me, and that was the first time I had come here.  I accept that I was truly at fault, because I was ignorant [of the fact].

After I returned to Thailand, Danny called me on the phone, and met me in Thailand.  We married because we love each other very much; and he has heart problems.  I want to look after him, and spend our lives together forever.

”

72.     It will be noted that the Visa Applicant claimed in that letter that she was illiterate.  She made the same claim in a letter dated 9 August 2002 in which she claimed that DIMIA had confiscated her ATM card.  Tpg158 reads as follows:-

“Regarding ‘Medicare’ in my file: when I was found by Immigration, they looked at everything in my bag.  In it were an ATM card, citizen’s ID card IS [East?] Club membership card, a Medicare card and some money.  The Immigration official took everything out and wrote in English.  I didn’t know what he/she had written, because I can neither read nor write.  He/she asked me whether each card that he/she saw was mine or not.  I said to the Immigration official “Those belonging to me are the citizen’s ID card and the ATM card from Bangkok Bank with my name in English on it: Paphawadee Iam-wong, and some cash.  The IS Club and Medicare cards belonged to an acquaintance who had entrusted them to me.  Everything that the Immigration official found in my bag, including AUD $400 cash, has not been returned to me to this day.”

73.     It was put to the Visa Applicant that neither the Applicant’s Statement of Facts and Contentions nor Tpg141 (and following pages) (a submission by Anne O’Donoghue, her previous adviser) contains any statement to the effect that she had bought a ticket or approached the Embassy for a travel document before she was apprehended.  Her answer, when asked whether she had told Ms O’Donoghue or Mr Murphy about either of them was “I am not sure whether I told them or not”..  Tpg141 and following is a submission by Anne O’Donoghue dated 29 August 2002.  That document states that the Visa Applicant was at that time employed by NuLife.  In evidence before the Tribunal she did not say that after returning to Thailand she went back to NuLife but rather that she earned money as a money lender and by renting out apartments.  The submission by Anne O’Donoghue would suggest that the travel document and ticket were obtained after she was apprehended and not before.

74.     It was put to the Visa Applicant that she married Nipon in order to help her new adoptive family to deceive the German Embassy.  Her answer was that she did so to change her name.  It was pointed out to her that she had changed her name many times previously.

75.     It was then put to her that at Tpg51 she said that the marriage broke up because of religious differences.  Ms Grewal referred her to and read her the second paragraph of T51 reading as follows:-

“The reason Nutda Horwood previously Nutda Nualbunreuang divorced Nipon Bunmalerd is because the husband was Moslem and his family would not accept his wife as Buddhist.”

Ms Grewal asked her whether she knew that statement was incorrect.  The answer was “I am not clear about your question”.

76.     The Visa Applicant then said that she was asked at interview, why she married for so short a time and she said that she had to give a reason.  The following interchange then took place;

“Because on interview they asked me why I had married for so short a time and I had to give a reason.

But this wasn’t the real reason?

“Yes”

Did your marriage end because his family wouldn’t accept you as a Buddhist?

“Not the real reason”

So you provided a false statement in your visa application?

No, because the question asked me “how many times I had been married?”

77.     It was put to her that she was divorced in December 2000 just before the Applicant visited Thailand.  She said that he (the Applicant) came at the end of December and they were married on 3 January 2001.  She then said that they were married on 27 December 2000 and the reception was on 3 January 2001.  She said that this occurred in a government office.  When it was put to her that the Applicant had said that it occurred at the University, she said that it was in the same area.  She said also that there was a reception attended by over 100 people.

78.     I intend to deal in brief with the baby.  The baby was due, according to the Visa Applicant in the middle of January 2004.  Mr Grewal put it to her that she must have become pregnant in April 2003 and before the Applicant arrived in Thailand in May 2003.  Her answer was “maybe I count wrong – maybe I lost count”.  She denied that the baby’s father was anyone other than the Applicant.

79.     At first she said that the fall which caused her to go into hospital occurred in December 2003.  This was then amended to refer to 12 January 2004.  She appears to have been in hospital from 4 to 14 January 2004. It is possible that this was a still-birth and not a miscarriage, occurring as it did so very late in her pregnancy.

80.     Cross-examination as to the interview process resulted in an admission that she was given an opportunity to ask questions.  The relevant question reads “Do you have any questions?”  And she answered “No”.  She nevertheless complained that the Embassy did not ask her at the end of the interview whether she had any questions.  At the end however the Embassy staff asked her whether she had told them everything and she said that she had.  Ms Grewal put it to her that she could then have made further comments if she had wanted to do so.  Her answer was “I scared and I answer what they asked me”.

81.     The Visa Applicant agreed that in her spouse visa application she disclosed assets of AU $100,000.  She said also that she no longer has a money lending business.

PART H – THE CHARACTER TEST AND THE GENUINENESS OF THE MARRIAGE

82.     I have previously indicated that I accept that the marriage is genuine from the point of view of the Applicant.  As to the Visa Applicant, the answer is less clear.  Mr Murphy referred me to the regulatory criteria, which are relevant for this purpose; I do not think that they are of much assistance.  The couple does not have joint income or assets and they have spent very little time together.  I accept that there has been communication, instigated in the main by the Applicant, since she went back to Thailand.

83.     At the heart of this case is the fundamental question of why a woman of means (and considerable means at that) came to Australia, overstayed her visa (giving up lucrative employment to do so) and then paid 700 dollars in order to obtain a position akin to slavery in Dubbo.  She had the means to buy as many tickets as she pleased.  I do not believe her evidence as to Dubbo or as to her inability to use a telephone or an ATM or to contact Thailand for money or to contact the Thai Embassy.  The only possible conclusion is that she was very anxious to stay and work in Australia (and with little regard to the consequences to her daughter) and if so why? If she had obtained a ticket and a travel document before being apprehended evidence to this effect would have been available.  If she had not been apprehended the circumstances favour the proposition that she would be in Australia to this day.  I do not know why she behaved as she did.  If she thought that Australia might yield a more reliable partner in life, she had the means to come to Australia legally.  Nor do I believe that she did not know that she was working and remaining illegally.  She is not an illiterate person, although she certainly described herself in this fashion.

84.     I do not know what to make of the marriage and divorce in December 2000.  I also do not know what to make of evidence as regards the baby, and both as to the conception and the miscarriage.  I am inclined to the view that in marrying the Applicant, the Visa Applicant had mixed motives and being a desire for Australian residence and also a belief that the Applicant might make a good husband.  Mr Murphy pointed out that the Australian Embassy at one stage appeared to accept the genuineness of the marriage; it appears to have formed a different view thereafter.

85.     Mr Murphy referred me to the judgment of the full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 and in particular to clause 6 of that judgment reading as follows:-

“6        The Court concluded by saying that it considered the parliamentary intention of s 501(2)(a) to be "simply to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories", viz, the person's past criminal conduct and all his other conduct. The Court said that the expression "good character" in the sub-section was correctly explicated by what Lee J had to say in Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 431 - 432:

"          ... the words `good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion. ...

Notwithstanding the breach of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.

...

In the 1989 Regulations the connection between the requirement that a person be of good character and the protection of the interests of the public was clearly expressed. In the 1993 Regulations such a connection is implied."

86. Were it not for the fact that the Visa Applicant considered it necessary to furnish this Tribunal with a stream of evidence which cannot possibly be true (and which was in fact spectacularly untrue) I might have been persuaded that there was some merit in this argument (leaving aside other evidence of a distinctly dubious nature and in particular as regards the marriage and divorce very shortly before her marriage to the Applicant). But in the light of her breaches of both sections 234 and 235 of the Migration Act 1958 (“the Act”) I cannot find that she passes the character test.  To do so would be tantamount to a finding that repeated and untruthful evidence before this Tribunal should so easily be overlooked.  I repeat that I do not know why the Visa Applicant has behaved as she did.  While on the subject I do not accept her complaints as to ill treatment by the Australian Embassy staff.

PART I – DIRECTION No 21 DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No 21 (“THE DIRECTION”)

87.     In this part I references to numbered clauses refer to numbered clauses in the Direction.

88.     Clause 2.3 provides that the primary considerations are:-

“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.”

89.     Clause 2.3 must be considered in conjunction with clause 2.5 which provides that:-

“2.5     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).”

90.     The Visa Applicant’s daughter has had virtually no relationship with the Applicant and I do not believe that I need to consider her interests.

91. I do not think recidivism is a substantial risk even though I cannot discount it. I must bear in mind that the Visa Applicant was prepared to deceive the German authorities. (I also do not think that she poses a threat to Australia). But even if this is more of a concern for Germany, why did she in her visa application give as the reason for that marriage and divorce the explanation that the marriage failed because of religious difficulties? If her evidence before me on this point was true then her statement as to the reason for the breakdown was false and thus in breach of s234 of the Act.

92. I must treat the Visa Applicant’s conduct as very serious. I am not here referring to her overstaying or even her illegal work. The penalties for breaches of s235 of the Act are not as severe as they are for breaches of s234. I refer to her breaches of s234 and in particular false statements to the authorities and before this Tribunal. Mr Murphy contended that the decision-maker came to his decision before false evidence was given before me; I do not think that this is relevant. It is my duty to form the correct and preferable decision in the light of the totality of the evidence before me and including the evidence given before this Tribunal.

93.     As to deterrence it is necessary to send a message, and a strong message at that, that behaviour of this sort will not be tolerated and will not be rewarded by the grant of a visa.

94.     Australian expectations might perhaps be divided.  But on balance an informed member of the Australian public would find it hard to understand why I would recommend the grant of a visa to a person who has consistently and at such length lied to this Tribunal.

95.     There is undoubtedly a consideration of hardship for the Applicant.  He did not know of her conduct; it must also be said that he did not know of her illegal status.  But the hardship factor is if anything somewhat more ephemeral than real.  If he would find it difficult to live in Bangkok because of the heat, her investment income is apparently sufficient to allow them to live in other places; she is living in Laos at the moment. His position in the Navy is that of a clerk; he is 52 and his evidence suggested that he is waiting until his superannuation position improves before leaving. She said that if she lived in Australia she could easily supervise her investments from afar.  She could do so, for example, from Phuket and where the climate may be more favourable.  Mr Murphy tendered documents as to the danger factor in Thailand.  It does not seem to deter a large Australian tourist traffic to Thailand and I doubt whether it should.  I repeat though that they have the means to live elsewhere.  His long service leave entitlement will absorb a part at least of the period until retirement in 2007 becomes more worthwhile financially.  That said, the Applicant deserves sympathy.  None of this is of his making; his was an entirely passive role.  But at the end of the day I must strike a balance and the balance cannot come down in his favour.  I was told that it is the custom in Thailand to “reduce” the price of real property to reduce taxes.  It may also be that false evidence is taken less seriously in Thailand than it is in Australia.  But this is an Australian Tribunal deciding a matter according to Australian law and applicants must understand that truthfulness is important.  That perhaps is also a message, which must be sent.

96.     The totality of the evidence before me is large; I refer to both the written and the oral evidence.  As I considered the written evidence after the hearing I found other inconsistencies, some only of which have been referred to in these reasons.  I am obliged to find that the evidence by the Visa Applicant before this Tribunal was untruthful to a very substantial degree, even though it may have been contrary to her interests to do so.  I again note that it is hard to find a rational explanation for her conduct, both after she came to Australia and overstayed and worked illegally and thereafter.

97.      In all the circumstances, the exercise of the discretion in her favour is not warranted and the decision under review is affirmed.

I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President

Signed: A. Krilis       .......................................................................................
  Associate

Date/s of Hearing  23 & 24 October 2003 and 17 & 18 February 2004

Date of Decision  11 March 2004

Solicitor for the Applicant           Mr Kerry Murphy
Solicitor for the Respondent     Mr Christos Mantziaris and Ms K Grewal