Hua and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 320
•7 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 320
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/335
GENERAL ADMINISTRATIVE DIVISION ) Re SOC KIENG HUA Applicant
And
MINISTER FOR IMMIGRATION and MULTICULTURAL and INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date7 April 2003
PlaceSydney
Decision The decision under review is remitted to the Respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Soc Kieng Hua. ...............................................
Mr J Block
Deputy President
CATCHWORDS
IMMIGRATION - visa application - Remaining relative visa - character test - false documents - inconsistent or “bogus” death certificate - past and present conduct - primary considerations - seriousness of conduct - the Protection of the Australian community - the risk of recidivism - the need for deterrence - expectations of the Australian community - hardship - discretion to be exercised in favour of Applicant
Migration Act 1958 - sections 97, 234, 501
Direction 21 - Visa Refusal and Cancellation under Section 501Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054REASONS FOR DECISION
7 April 2003 Mr J Block, Deputy President PART A – INTRODUCTION
1. The decision under review is that made by a delegate of the Minister for Immigration and Multicultural Affairs (as he then was) refusing a sub-class 115 (Remaining Relative) visa to Sok Cheu Hua (“the Visa Applicant”). The Applicant, who is the Visa Applicant’s sister, sponsored the application. The application was refused in accordance with section 501(6)(c)(ii) of the Migration Act 1958 (“the Act”) on the basis of the Visa Applicant’s past and present general conduct.
2. (a) Mr K Murphy of Craddock Murray Neumann, solicitors, appeared for the Applicant and Ms K Grewal of Blake Dawson Waldron, solicitors, appeared for the Respondent.
(b) The Tribunal had before it the T documents and also Supplementary T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Because the Supplementary T documents are not numbered sequentially, after the T documents, each page or document reference retained in these reasons is prefaced either by T or S so as to refer to either the T documents or the Supplementary T documents as the case may be. The Tribunal also had before it a number of Exhibits as follows:
Exhibit
Description
Date
A1
A map of the relevant area in Phnom Penh
A2
Statutory Declaration of the Applicant
8 August 2002
A3
Exhibit A3 is contained at T page 102 and is a further Statutory Declaration of the Applicant
8 September 2000
A4
Exhibit A4 is contained at T pages 105 and 106 and is a further Statutory Declaration by the Applicant
8 September 2000
A5
Exhibit A5 is contained at T pages 107 and 108 and is yet another Statutory Declaration of the Applicant
8 September 2000
A6
Exhibit A6 is contained at pages T 109 and 110 and is yet another Statutory Declaration of the Applicant
8 September 2000
A7
Handwritten Statutory Declaration of Hua Sok Cheu
22 March 2002
A8
Typewritten Statutory Declaration of Hua Sok Cheu with right thumb print
22 March 2002
A9
Photos of People at Cremation
A10
Explanatory of photographs
A11
Statutory Declaration of Heng Huy
22 March 2002
A12
Statement of Heng Huy with thumb print
29 August 2002
A13
Second map of relevant area in Phnom Penh
A14
Statement of Seng Kouch
13 November 2002
A15
Statement of Chay Cheng
22 March 2002
A16
Statement of Keo Kim Chieu
22 March 2002
A17
Report Amnesty International entitled Cambodia – Time for Truth about Political Killings
18 July 1997
R1
Report by Australian Embassy Phnom Penh
11 July 2002.
(c) This case commenced on 12 November 2002 having been listed for two days. It could not be completed by the end of 13 November 2002 and was thus relisted to be heard on 3 and 4 March 2003. Evidence was given by the Applicant, the Visa Applicant, Heng Huy (who is the Visa Applicant’s husband and is referred to in these reasons as “the Husband”), each of the sons of Sok Leang Hua (who is alleged to have died in July 1997 and is referred to in these reasons as “the Sister”) and also two friends of the Visa Applicant, being Chay Cheng (Exhibit A15) and Keo Kim Yieu (Exhibit A16). The names of the two sons of the Sister are Seng Kouch (Exhibit A14) and Try Kouch, in respect of whom no statement was provided. In all cases an interpreter in the Khmer language assisted the witness; all of the witnesses except the Applicant and Seng Kouch gave evidence by telephone link to Cambodia.
3. The time periods involved in this Hearing were longer than expected. This is so for a number of reasons, in particular:
(a) The telephone line to Cambodia was decidedly uncertain and there were numerous interruptions and stoppages, some of quite lengthy duration. This was so especially in respect of telephone calls into the Tribunal; this occurred on the basis, so the Tribunal was told, that it would save expense. However, the ordinary telephone line in respect of calls to Cambodia was often also unreliable.
(b) The need for an interpreter in the Khmer language tended to ensure that progress was slow. The interpreter was on numerous occasions asked to repeat the question; on many occasions answers were slow or avoided or couched in a manner which the interpreter found difficult to interpret. This was so in particular, in respect of the Visa Applicant and the Husband; (I shall revert to their evidence later in these reasons). It may be that the difficulty arises in part from the Khmer language itself; on one occasion a reference to a person of one gender was translated as a reference to a person of the other gender, and the interpreter said that this ambiguity arose from the language itself.
(c) Time was taken in an effort to understand reference to places in Phnom Penh so as to ensure that those references were correctly recorded. In some areas a relevant street has different names.
4. (a) The Respondent’s Statement of Facts and Contentions dated 4 November 2002 contains in clause 3, the usual helpful chronology. Clause 3 reads as follows:-
DATE
EVENT
S37 DOC PAGE REF.
1950
Review and Visa Applicant’s sister, HOUR (HUA) Sok Leang born in Cambodia.
15/05/53
Visa Applicant born in Cambodia.
T11, T34, T84
03/04/54
Review Applicant born in Cambodia.
T4
26/02/86
Review Applicant arrived in Australia.
T42
18/12/89
Review Applicant became an Australian citizen.
T69
04/08/94
Visa Applicant applied for a subclass 214(Special Assistance Category) visa under the name HOUR Sok Cheu. The application was unsuccessful.
T11, T131
02/01/96
Visa Applicant applied for a subclass 214(Special Assistance Category) visa under the name HOUR Sok Cheu. The application was unsuccessful.
T11, T131
22/07/96
Visa Applicant notified by the delegate of the Respondent that her application for a subclass 214 visa had been rejected.
S14
05/07/97
HUA Sok Leang died, according to the second Death Certificate submitted by the Visa Applicant.
T39
06/07/97
HUA Sok Leang died, according to the first Death Certificate submitted by the Visa Applicant.
S19
22/08/97
Date of registration of second Death Certificate of HUA Sok Leang provided by the Visa Applicant.
T38, T39
08/12/97
Date of registration of first Death Certificate of HUA Sok Leang provided by Visa Applicant.
S19
20/02/99
Visa Applicant signed application for subclass 15(Remaining Relative) visa.
T54
23/12/99
Visa Applicant lodged visa application enclosing the first Death Certificate.
T12, A1
21/07/00
Migration Section, Australian Embassy, Phnom Penh wrote letter to Visa Applicant requesting the following information:
· A statutory declaration or statement from the Review Applicant giving details of all close relatives claimed to be missing or dead, including their names, when they had last been in contact, the evidence on which they are claimed to be dead or missing, any attempts to locate them.
· A statutory declaration or statement from the Review Applicant explaining how contact had been maintained between herself and the Visa Applicant.
· A statutory declaration or statement from the Review Applicant detailing the Visa Applicant’s spouse’s family composition.
In response to this request the Visa Applicant provided, among other documents, the second Death Certificate.
T99
08/09/00
Review Applicant made the following statutory declarations:
· As to the death of the Visa Applicant’s parents and sister-in-laws
· As to her family background
· As to her contact with the Visa Applicant since she moved to Australia
T102
21/09/00
Statutory declarations made by the Review Applicant lodged with the Migration Section, Australian Embassy Phnom Penh.
T102, T105 – T110
06/11/01
Home visit and interview by a delegate of the Respondent with the Visa Applicant. The delegate noted after the interview that they had suspicions regarding the circumstances surrounding the death of HUA Sok Leang.
T118
06/02/02
Further interview conducted by a delegate of the Respondent with the Visa Applicant regarding the death of HUA Sok Leang. The Visa Applicant refused to admit that she had submitted the first Death Certificate and denied all knowledge of it.
T121, T122
07/02/02
A delegate of the Respondent refused the Visa Applicant’s subclass 115 application.
T6, A1
06/03/02
Review Applicant lodged an application for review of the Respondent’s decision.
T1, A1
(b) As a matter of balance, the Applicant’s Statement of Facts and Contentions dated 8 August 2002 is included but only in respect of its content under the heading “Facts” on page 1 of that Statement, as follows:-
“FACTS:
A. Immigration history
1. On 23 December 1999, Sok Cheu Hua, the sister of the applicant, lodged an application for a subclass 115 last remaining relative visa at the Australian Embassy in Phnom Phen, Cambodia.
2. On 7 February 2002, a delegate of the respondent refused the subclass 115 application.
3. On 6 March 2002 this application was lodged with the Tribunal.
B. Prior offences
1. The visa applicant, Mrs Sok Cheu Hua has no criminal convictions. She has not been charged with nor convicted of any criminal offences in Cambodia.”
(c) Much of the time taken before the Tribunal related to the question of whether the Sister is in fact dead. In respect of the Sister, two different death certificates were provided by or on behalf of the Visa Applicant. I refer in particular to clauses 18 and 19 of the Respondent’s Statement of Facts and Contentions dated 4 November 2002 reading as follows: -
“18. The Review Applicant contends at paragraph 9 of her Statement of Facts and Contentions that the Visa Applicant obtained no advantage from submitting two death certificates. This is not the important question. The question is whether the Visa Applicant provided a false document perceiving it could be to her advantage. As the Visa Applicant submitted the first Death Certificate, which she now claims to have no knowledge of, with her visa application, the Respondent contends that the inference should be drawn that the Visa Applicant perceived an advantage in providing it.
19. The Review Applicant also contends at paragraph 6 that the differences between the documents are only minor. This again is not the important question. Nor is the important question whether the Visa Applicant’s sister is dead. The important issue is whether the Visa Applicant has submitted false documentation and made false and misleading statements. The Respondent submits that the fact that the two death certificates are different infers that one of the documents must be false. Furthermore, the Visa Applicant’s denial that she submitted the first Death Certificate when it was provided with her application is a false statement which allows an inference to be drawn as to her honesty.”
(d) The Tribunal agrees with the Respondent’s contention that the important question before the Tribunal is not as to whether the Sister died but rather as to whether the Visa Applicant submitted false documents or made false and misleading statements. That said, the question of whether the Sister is in fact dead becomes, as was no doubt inevitable, a matter of, at the very least, considerable relevance.
5. (a) The first death certificate (referred to in these reasons as the “first certificate”) in respect of the Sister appears at S15. It sets out that the death of the Sister occurred on 6 July 1997 at Dangkor District, Phnom Penh, that the “reason of death” was “death by shutting on July” and that the reporter was the Husband (the brother-in-law of the Sister and, as set out previously, the Husband of the Visa Applicant) and whose present address was recorded as being number 1 in street 165 in the district of Daun Penh. The first certificate was issued in the district of Daun Penh and was registered on 8 December 1997.
(b) The second death certificate (referred to in these reasons as the “second certificate”) in respect of the Sister appears at T7. It differs as to its form from the first certificate in that it purports to record additional information, and including the address of the Sister, the ID card number of the reporter (which was in fact left blank) and other matters. In respect of the second certificate the date of death is recorded as 5 July 1997 and the place of death is referred to as “Center 12”. The reason given for death is “pappening on 05.06. July” and the reporter was again the Husband whose address was specified as being in street 444 in the district of Tuol, Tumpong 2. The second certificate was issued in the district of “Chamcar Morn” and it was registered on the 22 August 1997. (Exhibit A13 indicates that street 144 is in fact not in the district of Tuol Tumpong but rather in the district of “Chamcar Morn”).
(c) T6 is a death certificate for Heng Cheng, the Husband’s sister who died in a motor accident on 15 February 1997.. That death certificate was issued on 22 August 1997 in the district of “Chamcar Morn” on 22 August 1997 and again the reporter was the Husband. The address of Heng Cheng, (who is referred to as “the Deceased”) was recorded as being at street 165. The evidence before me was that the Husband registered the death of the Sister and the Deceased on the same day, that is 22 August 1997, and notwithstanding that they died about five months apart.
6. (a) The Visa Applicant was interviewed by the Australian Embassy in Phnom Penh (referred to as “the Embassy”) on two occasions. The first interview took place at the Visa Applicant’s home on 6 November 2001 and is referred to as “the home interview”; T documents page 118 is a report of that interview which reads as follows:
“Two issues emerged during interview:
(1) I have strong doubts about the genuineness of the death certificate for PA’s older sister HUA Sok Leang (folio 51). PA was questioned in detail about circumstances of Sok Leang’s death.
PA said that on 5 July 1997 Sok Leang told her (PA) that she was intending to go to Building 12. Building 12 is the name of a village located at Sangkat Tek Laak, Khan Toul Kork on the western edge of the city. It includes the homes of several high-ranking generals. It was the scene of factional fighting during the July 1997 coup. PA said that she does not know why Sok Leang went there.
PA said that the family assumed the worst when Sok Leang was not heard from in the evening of 5 July. PA said that she went to Building No 12 several days after the coup and at first could not recognise the body of her sister. She presumed that a burnt body was that of her sister, although the features were badly burnt. PA said that the family arranged for cremation of the body (which was unclaimed by others) at the Toul Tumpoung Pagoda 4-5 days after 5 July 1997.
I am concerned that the family waited until 22 August 1997 to register the death. PA was asked to explain the delay and accounted for it by saying that administrative functions did not resume after the coup until this time. Granted that it took some time for normal functions of government to resume, but it still seems to be an excessively long time before registration of death. The registration of death took place on the birthday of PA’s youngest son, Kong Eang DOB 22 August 1986. It seems to be an unusual thing for the family to wait until the birthday of an 11 year-old boy before registering the death of his aunt.
I am also concerned that the family has no pictures of the cremation ceremony or the stupa where Sok Leang’s ashes are held. There is, according to PA, no inscription or tablet on the stupa or at the pagoda recognising Sok Leang’s death. They have no photographs of the ceremonies held at 7 days and 100 days after the death. They have no commemorative plaque or place of remembrance for Sok Leang. PA was asked for a photograph of Sok Leang and was only able to produce a photograph that appeared to be at least 20-25 years old.
(2)PA’s eldest son, Kim Ly DOB 8 August 1984, appears to have a mental disability. He was able to answer basic questions about numbers of brothers and sisters but does not appear to be functioning at the level of a 17-year-old. Issue of cost to Australian community has to be examined at medical stage.
Points confirmed by PA at interview:
PA has four children. Eldest, Kim Khourng DOB 27 May 1982 is a 3rd year student of Economics and English at a local university. She lives at home and does not work.
PA’s previous address: Sampov Poon Commune Koh Tom District Kandal Province.This is her husband’s place of origin. PA says she was living there when “found” by sponsor HUA Soc Kieng.”
Further interviews took place at the Embassy on 6 February 2002. T38 is a record of the interview; in respect of T38, I include the questions and answers in respect of questions 3,7,8,16,17,18,19,24,31,32,34,38,42,43,44,45 and 46 which appear at page 122 and following pages as follows:
“3. What is your name and date of birth?
HUA Sok Cheu, 15/5/53.
7. How long have you lived there?
Since 1995.
8. Where were you living prior to 1995?
Mao Tse Tung Street, Boeung Keng Kang 3. Maybe house 165 but I’m not sure.
16. When did Hua Sok Leang pass away?
During the fighting of 5 and 6 July 1997.
17. Where did she pass away?
Samnong 12 (Name of an area)
18. Where is Samnong 12?
Near Damkor Market.
19. Did she live in that area before her death?
No.
24. Where was her funeral held?
There was no funeral. We offered food to the monks as we have no relatives.
31. I still don’t understand why you didn’t organise a proper funeral for your sister?
There was upheaval. People stayed at home. We had her cremated. We didn’t even celebrate the 7 days ceremony.
32. Did you have the 100 day memorial service?
No.
34. Where was she living before her death?
She had her own home in Boung Keng Kong 3. It was located on Mao Tse Tung Street but I can’t remember the house number but it was located on the first floor.
38. Where are her surviving children now living?
They went to work somewhere but I don’t know where.
42. You have provided two different death certificates for Hua Sok Leang. (Folios 30 and 51 present to PA)
One is issued on 22/8/97 from Chamcarmon district offices which records her death took place on 5/7/97 at Centre 12 and the other was issued on 8/12/97 from Duan Penh district which records her death took place on 6/7/97 at Dangkor district, two very different locations. Please explain this.
We only lodged one certificate.
43. Within your initial application, you included this death certificate (see folio 30) issued on 8/12/97. After we had the opportunity to assess your application, we issued a request for further information on 21/7/2000. It was after that event that you submitted the second death certificate (see folio 51) issued on 22/8/97 from a totally different District office and recording totally different circumstances of death for HUA Sok Leang. Please comment.
I only submitted one death certificate.
44. Which death certificate should the embassy accept as genuine?
I only submitted one death certificate.
45. You may have submitted one death certificate for Hua Sok Leang but we have two different certificates on file. Which one is genuine?
PA examined both death certificates on file and stated that the one issued on 22/8/97 (see folio 51) was genuine.
46. Are you saying the other death certificate issued on 8/12/97 (see folio 30) is not genuine?
I don’t remember.”
7. (a) Exhibits A1 and A13 are maps of the relevant area in Phnom Penh, and being the area in which the Sister lived and died, in which the Deceased lived, and in which the Visa Applicant and her family still reside. There are three districts in Phnom Penh which appear to be relevant; they are Don Penh, Tuol Kork and Cham Carmon, and which run from north to south, and so that Don Penh is the most northerly district and Cham Carmon is the most southerly district. The maps do not include scales of distance so that the distance between one district and another cannot be calculated. Similarly the maps do not indicate the numbers in any given street of any relevant residence so that the distance between one residence and another also cannot be ascertained.
(b) Pochentong Street or USSR Boulevard or Russian Boulevard lies to the south of Boeng Kak Lake which is situated to the west of the district of Don Penh.
(c) Mao Tse Toung Boulevard is close to Wat Tuol Temple, and in which the Sister is alleged to have been cremated and which is referred to later in these reasons. Mao Tse Toung Boulevard is a long street partly in the district of Cham Carmon and partly in the district of Tuol Kork. Street 444 lies some six streets to the south of Mao Tse Toung Boulevard in Cham Carmon; street 444 runs from east to west. It is some distance away from street 165 which runs from north to south in Tuol Kork.
(d) The Daum Kor Market in which the Deceased had a vegetable stall is in the district of Tuol Kork some distance to the north west of street 444.
8. T2 notes that the Visa Applicant had previously, and as Sok Cheu HUA, (and in 1994 and in 1996) applied unsuccessfully for subclass 214 (Special Assistance Category) visas. Those applications were referred to only in passing in the hearing before the Tribunal.
PART B – THE EVIDENCE OF THE APPLICANT
9. The Applicant was originally one of seven siblings, four brothers and three sisters (including the Applicant). The sisters are the Applicant, the Visa Applicant and the Sister. Of the four brothers, two died during the Pol Pot regime and the surviving brothers (Khieng Huot Hua and Kheng Seng Hua) are resident in Sydney. The Applicant and the two surviving brothers who came to Australia in 1986 live in Cabramatta; the Applicant owns a noodle restaurant, as does one of the brothers, and the other brother, assists in both of those restaurants.
10. As I have said the Applicant and her two surviving brothers came to Australia in 1986. Although the Applicant has been here for nearly 20 years she has very little English. She said that she has been too busy to learn English. All three of them are childless which is one reason why they desire that the Visa Applicant and her family be reunited with them in Sydney. The Applicant has visited the Visa Applicant in Cambodia on a number of occasions since taking up residence in Australia.
11. The Applicant was not involved in either the visa application, the interviews to which I have referred, or the death certificates. The Applicant was told of the death of the Sister by the Visa Applicant.
PART C – THE EVIDENCE OF THE VISA APPLICANT
12. The Visa Applicant is a housewife who is married to a builder. She had only three years of education and can read and write in her own language only to a limited extent.
13. The visa application was signed by the Visa Applicant in 1999 after it was prepared by Hong (no relation) who assisted her in respect of the application. The Husband took the application to the Australian Embassy.
14. The Visa Applicant said that except in connection with the two Embassy interviews which occurred on the same day, she did not ever go to the Embassy.
15. The Sister did not live with the Visa Applicant. She lived in Mao Tse Toung Drive and had a vegetable stall in the Daum Kor Market which is in the district of Tuol Kork. On 5 July 1997 the Deceased visited the Visa Applicant in the afternoon; she said that she was going to section 12 which is some distance away; she went there on her motor cycle. She did not say why she wanted to go to section 12; (the Visa Applicant did not say that the Sister was accompanied at the time by her younger son).
16. The Visa Applicant lives in street 444 and has lived there for some seven years. She described the Sister’s residence in Mao Tse Toung Drive as being close by and so much so that visits occurred often. The map exhibits suggest that the two streets are not close.
17. On 10 July 1997 the Visa Applicant was told by a friend (Ry) that the Sister had been killed; (it may be noted that there was a coup in Cambodia which took place on the 5 and 6 July 1997 and that those dates in turn occurred on a Saturday and a Sunday). The Visa Applicant said that conditions were so unsettled during the coup that people were afraid to leave their homes.
18. The Visa Applicant went to search for the Sister and found her lying by the side of the road. (The evidence before me by various witnesses as to which precise road was involved, and where the Sister’s body was found, was quite remarkably inconsistent). The Visa Applicant took the body of the Sister to the temple where it was cremated; the cremation was attended by the Visa Applicant, the Husband, the Sister’s younger son (Try Kouch) and friends named Jun and Lao Sok Hua.
19. Exhibit A9 is a photograph of people who, so it is alleged, were present at the cremation and Exhibit A10 is said to be a list of the people who attended the cremation. The names and descriptions contained in Exhibit A10 are as follows:
‘1. Touch How (M) Lay man elder in the temple
2. Tek Chray (M) person in charge of Burial or cremation
3. Tet Kong (Venerable) Senior in the temple
4. Chay Hong LAM (Venerable) Senior in the temple
5. Heng Huy (M) Husband of Applicant (Deceased brother in law)
6. Hua Sok Cheu (F) Applicant (deceased’s sister)’
20. The Visa Applicant said that she recognised the Sister by reference to her face, the sarong she was wearing and the mole under her left eye. The Visa Applicant denied any knowledge of severe burn damage, as referred to in the home interview report. The evidence in general referred to death having been caused by a bullet in the stomach. If this was the cause of death and there was no burning, the reference to the sarong and the mole (referred to also by the Husband) is in all the circumstances odd. One would have thought that if there were no damage to the face it would have been sufficient to refer simply to that feature.
21. The Visa Applicant during the course of her evidence made different and irreconcilable statements as to the fact that there were two death certificates. At first she denied that there were two death certificates; she also said that she became aware of the fact that there were two death certificates only after the visa application was refused, and she also said that she knew that there were two death certificates at a point in time prior to the rejection of the visa application.
22. The Visa Applicant agreed that at the Embassy interview she was shown two death certificates. She said that the first certificate was obtained by the Husband on the day after the death of the Sister. He was taken to the Daun Penh registry by a friend, who did all the talking because the Husband was, so she said, “too upset to speak”. The first certificate was received at her home by one of her children some time later and so she said, “she put it away”.. She agreed that the first certificate was taken to the Embassy in connection with the visa application but could not offer any explanation as to how or why this occurred.
23. The Visa Applicant said that the Sister’s younger son attended the cremation. She said that he was currently with an uncle on his father’s side and that he was uncontactable.
24. The Visa Applicant’s attention was drawn to the first certificate which reflects the date of death as 6 July 1997. She said that that certificate was wrong and that the correct date of death was 5 July 1997.
25. The Visa Applicant said that the Husband registered the death of the Sister again having been told by someone working in a ministry that the death should be registered in the right place, and that was why the death was registered a second time and in a different registry. As she put it, he thought that he should do it all again.
26. In cross-examination the Visa Applicant could not remember when the first certificate was received but agreed that she must have given it to the friend who prepared the visa application. She was then cross-examined as to the second certificate and the Embassy interviews. She said, and repeated, that she knew nothing about two certificates at the Embassy interviews and learned of the existence of two only after the visa application rejection. It is unnecessary to go into further details as to her answers to questions referable to two death certificates. They were inconsistent, evasive and largely untrue.
27. The first certificate was registered in the district of Don Penh. She said that she used to live there “maybe one or two years ago”. It was then pointed out to her that she had said that she had lived at her present address (street 444) for the past seven years. Her answer was that she had lived at Don Penh for a couple of years and had then moved to Mao Tse Toung Boulevard.
28. The cross-examination of the Visa Applicant was resumed on the 13 November 2002. The Visa Applicant was again asked about the two certificates and when she knew that there were two. Her answers were again evasive. She then said that she saw the two certificates at the interview; on the previous day she had said, inter alia, that she had seen them only after the visa application had been rejected.
29. She also said that she first knew of the first certificate when her husband told her about it after the visa rejection. However, she had also said that her husband had lodged the correct death certificate with the visa application. The Visa Applicant was sure that the first certificate was not correct.
30. The Visa Applicant said that when she went to identify the body of the Sister, she was accompanied by a neighbour, Ok Tem. She was asked having regard to the home interview why she said it had been badly burned and she denied that she had said so. She said that she did not know what the interpreter might have said because she doesn’t speak English. (The interpreter was in fact a Cambodian male).
31. The Visa Applicant said also that Exhibit A9 was taken after the cremation but not at it. She did not think of including the Sister’s son in the photograph. The photograph was not furnished to the Australian Embassy. She said that she found it only after both interviews had already occurred.
32. The Visa Applicant was asked about the fact that her home contains no place of remembrance for the Sister. She said that the home interview took place on her verandah. She said also that there was no separate shrine or place of remembrance for the Sister and no names or plaques anywhere. She said that they were not needed because her husband and she knew where they were.
PART C – THE HUSBAND
33. The Husband is a builder who builds houses for resale. He has educational qualifications equivalent to Year 12 in Australia. He reads and writes Khmer. The Husband said that he knew that the Sister had died. He saw her body in Tuol Kork on 10 July 1997 and that she had died through a bullet wound. He said that he recognised her by her face, her clothes and the mole under her left eye.
34. The Husband said that a few friends (whose names were furnished, but not including Lau, who took him to register the first certificate) were present at the cremation.
35. The Husband agreed that he took the visa application to the Embassy but he could not remember whether it included a death certificate. When asked why there were two death certificates in the file he said that he only received one because the other was received by his child.
36. He was then asked why he reported the death in Cham Carmon and he had said that he did so because he lives in Cham Carmon. When asked why he had reported the death in Daun Penh, his answer was that he didn’t know.
37. The Husband said also that he was told by the person in the ministry (name unknown) that he should have reported the death where he lived. He said that he knew that there was a problem with regard to there being two death certificates only after the visa application interviews; he accompanied his wife to the Embassy interviews but was not present at them and waited outside.
38. The Husband was asked in what respects there were any errors in the death certificates. He said that the address of the Sister was incorrect in one of them. He said furthermore that there was another error in the death certificate which reflected the date of death as 6 July 1997 when the correct date of death was 5 July 1997. The Husband said that he had taken steps to correct the incorrect death certificate by contacting the registry involved but has not yet received any correcting material or corrected certificate.
39. The Husband was cross-examined as to the death of the Deceased (his sister) which was reported at the same time and in the same registry as that applicable to the second certificate. His sister died in a motor accident at the market. She lived separately from him in street 165 which, according to the Exhibits, would appear to be in the district of Tuol Kork.
40. The Husband was asked about the residential address at which he had lived with his sister. He agreed that it was not in Tuol Tupong. When asked when he had lived at another address (that is, street 444) his answer was “before”.
41. He was then asked why if the Deceased died in February 1997 and the Sister died in July 1997, he registered their deaths on the same day (22 August 1997) and at the same registry. His answer was that if he had a relation who had died previously he should register them together. He was then asked why he had not registered his own sister’s death, that is, the death of the Deceased in Daun Penh when he first registered the death of the Sister. His answer was that he was upset.
42. He was then asked why if the Deceased lived in another district, her death was registered in Cham Carmon. His answer was that he wanted to do everything together. He said also that the house at street 165, and referred to by him as “my first house”, had been sold.
43. Why then did he go first to the Daun Penh registry? His answer was that his friend took him there. He was then asked why if the Sister died in Tuol Kork and he lived in Cham Carmon, he should have gone to register her death in a completely different registry. He said that his friend took him there. He was then asked why if he was the reporter and presumably gave his address as being in Cham Carmon, the first certificate reflects Daun Penh as his own address. He said merely that his address was in Daun Penh. He went on to say “this is my address in 1991 until a couple of years after”.
44. It was put to the Husband that the Daun Penh address was not his address in July 1997. His answer was simply that he was sad.
45. The Husband was cross-examined thereafter at some length as to how two death certificates came to be in existence and inter alia, how the second certificate came to be registered four months prior to the first certificate which was registered first. The answer was that he had no say in the insertion of the dates. He said that he gave 6 July 1997 as the date of death in the first certificate because the coup lasted two days and he just “put in the 6 July”.
46. The Husband was again asked about where the body was found. He said that he saw it lying in the street and being street 265. It was put to him that he must have told the Daun Penh registry that she died in Dang Kor district. His answer was that it all happened a long time ago and he couldn’t remember.
47. The Husband said that he did not know how the first certificate became part of the visa application.
48. As to the photograph (Exhibit A10) the Husband was asked why his friend (the friend who took him to the registry in respect of the first certificate) was not included in his list of people at the cremation. His answer was that the friend’s wife (Lau Sok Hau) was included and “I don’t have to give you his name if I can give you his wife’s name”.
49. The Husband also said that he never discussed any of these matters with his wife, the Visa Applicant. It may be noted that the Visa Applicant said that when she went to look for the body she was accompanied by a friend but did not make any mention of being accompanied by the Husband or for that matter any other people.
PART D – ASSESSMENT OF THE EVIDENCE OF THE VISA APPLICANT AND THE HUSBAND
50. I have been into some detail as to the evidence of the Visa Applicant and the Husband; however it is necessary to consider the transcripts in detail in order to appreciate just how difficult it is to make sense of their evidence. There were occasions when there was no answer or an answer which the interpreter found difficult and sometimes indeed impossible to interpret. Her answers were often not, in reality answers. Resort to “repeat the question” occurred all too often.
51. The evidence of the Visa Applicant and the Husband when considered in conjunction with the interview evidence (and at no stage was the interview evidence queried) is of course not credible and moreover unacceptable. It can be characterised in general terms as evasive, hesitant, inconsistent and untruthful. Were it not for the fact that there was other evidence before me as to the fact that the Sister died, I would have grave doubts as to whether in fact she did die. (I will refer to the other evidence later in these reasons).
52. There is of course a threshold question and that is, why the Visa Applicant and the Husband should have been involved in two death certificates and having done so, would then have found it necessary to be so untruthful about this fact. I do not know the answer, and nor, having regard to his closing submissions, does Mr Murphy. On the assumption that the Sister died during the coup, why did her death have to be surrounded by quite so much false evidence? The Visa Applicant has had little education but this does not even begin to explain her reluctance to answer simple questions truthfully. In particular her evidence as regards the circumstances of the death, how she found the Sister’s body, where the body was found, the cremation ceremony, (and at the interview she denied that there was one) the photograph, the shrine (or absence of one) and in particular as to the interviews, and in relation to the two certificates, are impossible to reconcile in any sensible or coherent fashion.
53. The Husband’s evidence was just as unacceptable and in some respects more so because he does have some education. His answers were at times evasive and sometimes nonsensical; he too altogether lacks credibility.
54. The Visa Applicant’s family suffered during the Pol Pot’s regime; two of her brothers were killed during that terrible time. It may be that people who have lived through times such as these have an understandable reluctance to confront authority truthfully in whatever form that authority takes. But this does not excuse or even explain why assuming the Sister is dead, they could not be truthful both in relation to the Embassy (in the case of the Visa Applicant) and during the hearings in the case of both of them. During the course of these lengthy hearings the evidence of the Visa Applicant and the Husband tended if anything to muddy the waters further.
PART E – THE EVIDENCE OF SENG KOUCH
55. Seng Kouch is a son of the Sister. He was born in Cambodia in 1975 and came to Australia on a spouse visa in 1995 and works as a cook in his aunt’s restaurant in Cabramatta.
56. He said that his father died in 1985 and that his mother died in the coup in 1997. He obtained the news of her death from his aunt (the Visa Applicant). He did not attend the cremation ceremony. However when he visited Cambodia in 1999 he went in to pray for his mother at the temple.
57. Seng Kouch said that he was convinced that his mother was dead because contact (telephone contact and occasional letters) stopped at the time of her death, and when he visited Cambodia “I never see my mother”.
58. This witness has had little contact with his younger brother who lives in a village in Cambodia with their uncle (their late father’s brother) and where he studies Cambodian literature. His uncle and brother have no telephone and he is too busy to write and so that contact is sporadic.
59. This witness’ evidence was virtually unchallenged and probably unchallengeable. It is important only in that it testifies as to the fact that in the middle of 1997 contact with his mother ceased.
PART F – EVIDENCE OF FRIEND
60. Witness statements had been produced on 22 February 2003 in respect of a number of possible witnesses including Ok Tem, Chay Cheu and Keo Kim Yieu. They were plainly prepared at the same time and by the same hand because they all testify to the fact that “I am sure that I saw her body with my eyes”.
61. In the result Ok Tem could not give evidence because she was unavailable and her witness statement was not tendered.
62. The witness statement of Chay Cheng is Exhibit A15. She gave evidence that she is a housewife and a friend of the Visa Applicant. She was then asked whether she knew the Sister and her answer was “no”.. She said that she did know the Visa Applicant and her husband but said that she did not know whether the Visa Applicant had any brothers or sisters. Mr Murphy did not ask her, understandably enough, any further questions.
63. Keo Kim Yieu (Exhibit A16) who also gave evidence, is a housewife and friend of the Visa Applicant. She said that she lives nearby to the Visa Applicant. She was asked how she knew about the Sister’s death and said that the Visa Applicant told her so. She also said that she was present at the cremation. When asked whether she had seen the body she said that she had seen it four or five days after the coup. She said that she went with the Visa Applicant to look for the Sister’s body.
64. It was pointed out to the witness that she had previously said that she learned of the death of the Sister from the Visa Applicant and was asked whether she now wished to testify that the Visa Applicant had not told her that the Sister was dead. A long silence was followed by “yes”.. She then said that the Visa Applicant did not say that the Sister had died; she said that she had accompanied the Visa Applicant to look for the Sister’s body and saw it lying in Block 12.
65. This witness testified also as to the fact that the death was caused by a bullet in the stomach. She attended the funeral which she said was attended by a lot of people. When examined as to what she meant by “a lot of people”, she answered “10”.
66. Ms Yieu furthermore said that she had been summoned to look for the body by the Visa Applicant because she is a neighbour and that altogether six people (including the Visa Applicant and husband) went to look for the body. (This evidence was of course is to be contrasted with that of the Visa Applicant on the same topic).
67. Ms Yieu said that the Visa Applicant lives in street 145 which is near to her street (143). (The maps indicate that they are in fact some distance apart). And in any event the evidence is that the Visa Applicant lives in street 444.
68. In general terms the evidence of this witness (Ms Yieu) could not be described as helpful; it too was contradictory.
PART G – THE EVIDENCE OF TRY KOUCH
69. No witness statement was produced in respect of Try Kouch who is the younger son of the Sister. It would seem that his evidence was produced as something of an afterthought. I had, in the November 2002 Hearings, indicated that if he was at the cremation his evidence could be relevant.
70. The witness said that he lived with his uncle and that he was about 17 or 18; (when questioned as to this rather silly answer, he said that he had been born in 1984 and he was nearly 18).
71. The witness said that he was told of his mother’s death by the Visa Applicant and that he attended the cremation and saw her body in the coffin before the coffin was closed.
72. Try Kouch was then asked when he learned that his mother was dead and he said that he had been told of it by his aunt, the Visa Applicant, after she had found the body. When asked why he didn’t go to look for the body, he replied “I leave it to your imagination, I can’t answer that. Being an orphan – the pain is indescribable”.
73. Try Kouch last saw his mother on the day which was the fifth; (he said that he did not remember the month or the year because he was so young).
74. He was then asked why when his mother did not come home on 5 July 1997, he did not go and telephone or contact someone. He said that he wished to correct his previous evidence and that on 5 July 1997 he was left by his mother with his aunt before she went out. He did not know why he had been taken to his aunt’s home. He could not remember whether this happened often. He repeated that he first knew of his mother’s death on 10 July 1997 when his aunt told him. He had stayed on at his aunt’s home after 5 July 1997 and after his mother had not returned. As to fresh clothing, his own home, so he said, was not far away. He did not remember how many people were at the funeral.
75. This witness asked for permission to make a closing statement and when given that permission said simply, that he knew that his mother was dead.
PART G – IS THE DECEASED DEAD?
76. Although the evidence as to the Sister’s death was in general terms unsatisfactory and contradictory, I formed the view that the probabilities favour the view that she is in fact dead. The older son’s evidence that contact with his mother ceased at or about the time of her death, coupled with the younger son’s evidence that he had seen the body of his mother in her coffin at the cremation should I think, on balance, be accepted even though, and in respect of the younger son the evidence was decidedly vague and at times again evasive. It is improbable in my view that she is still alive and that all of the witnesses (leaving aside the Applicant) are all party to a terrible and heartless fraud. If this is the case, then the younger son has effectively ensured that he will never gain entry to Australia; this may be true also in respect of the Sister. That is not to say that as I have indicated, the evidence was satisfactory; on the contrary it was most unsatisfactory, as appears from the previous provisions of these reasons. It was unsatisfactory in a number of important respects; it was unsatisfactory as to all of the circumstances surrounding the two death certificates; it was unsatisfactory as to the date of death, how the body was found, where it was found, who was at the cremation, assuming there was a cremation ceremony at all, and whether or not there was a shrine. It was particularly unsatisfactory when considered in conjunction with the interview evidence. At the end of the day, but by the narrowest of margins the evidence of the two sons should, I think, be treated as tipping the scale. I do not know why their evidence was produced so late in the day and so much so that in respect of the younger son a witness statement was not produced. I have previously said that I have no idea why so much contradictory and false evidence was produced. Questions which arose related to the cremation, and whether it occurred at all (see the interview evidence) and if it did, how many people attended? There are questions as to the cause of death and as to the shrine. There are questions as to where the body was found and whether the cause of death was a bullet wound in the stomach, or whether in fact burning made it impossible to identify the Sister in the ordinary way. Exhibit R1 is a report by the Australian Embassy as to how difficult it is to obtain true documentation in Cambodia; this is something of which I have had personal experience through cases in this Tribunal. The Australian Embassy had every right to be suspicious. I have previously noted that the Visa Applicant had twice previously, in a different name, unsuccessfully applied for visas.
PART H – THE CHARACTER TEST
77. Mr Murphy contended in the first instance that section 234 of the Act applies only where a statement is false and misleading in a material particular. He noted also that the term “bogus” has its own definition in section 97 of the Act. Section 234 of the Act and the definition of “bogus” in section 97 of the Act are set out as follows:
Interpretation
In this Subdivision:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
…
Section 234
False papers etc.
(1) A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
78. Mr Murphy’s contention was that although the first certificate in particular contained incorrect information the incorrect matters were minor. As he put it, most of the information in the second certificate was accurate and the first certificate was inaccurate only in that it contained incorrect addresses. Mr Murphy did not deal in specific terms with the fact that the date in the first certificate was incorrect. If of course the coup occurred over two days, the problem is that no one could possibly know whether the Sister died on 5 or 6 July 1997. I imagine that Mr Murphy intended me to infer that in the chaotic conditions of the coup, this difference should not be treated in all the circumstances as material.
79. Mr Murphy asked me to draw a distinction between evidence which is confused and evasive and evidence which is untruthful. His contention was that the evidence fell into the former category and should be so regarded. He made the point also that it should be regarded as arising from stupidity and ignorance rather than from dishonesty. In essence Mr Murphy sought to contend that if the evidence is so categorised, it would not fall within section 234 of the Act. Indeed he noted that in these circumstances a conviction under section 234 of the Act would be difficult to obtain. Of course I am not concerned with the question of whether or not a conviction would be difficult to obtain; I am concerned rather with the question of whether on the balance of probabilities there were relevant breaches of section 234 of the Act.
80. It is true of course that section 234 punishes a false statement only if it is false and misleading in a material particular. Direction 21 in its reference to breaches of section 234 of the Act is not so qualified; I should prefer the wording of the statute.
81. In my view the first certificate was in breach of section 234 and I do not think its incorrect references were minor. I do not know why incorrect information was given in respect of the first certificate but the Husband must have had a reason; so much is evident from the fact that he re-registered the death and obtained the second certificate. There is, as I have said, no real explanation of the different dates of registration and in particular there was no explanation as to why all of this occurred. The Husband’s explanation as to why he registered the deaths of the Sister and the Deceased (who died five months apart) on the same day and at the same registry was simply ludicrous.
82. Of course, certain of the actions of the Husband were his and not actions of the Visa Applicant. His statement that he did not at any time discuss the matter with the Visa Applicant must of course be quite untrue. However the interview records coupled with her own inconsistent evidence indicate in stark terms that the Visa Applicant had relevant knowledge and, at the relevant times, knew of his conduct. She did not at any stage contact the Embassy in order to correct false information previously given.
83. The evidence of the Visa Applicant when considered in conjunction with the interview evidence is such that I must characterise it as untruthful. The first certificate, which accompanied her visa application was false and misleading and as regards matters which were clearly thought to be material, even if I do not know why this should be so. Why else was the second death certificate obtained? It was obtained long before the home interview, which indicates that the Embassy was suspicious even at that stage. In my view the overall circumstances are such that I think it likely on the balance of probabilities that the Visa Applicant has committed a number of breaches of section 234 of the Act. Evidence of the nature given by her before me must be viewed in a serious light.. In my view, she fails the character test.
PART I – DIRECTION 21
84. Having found that the Visa Applicant failed the character test, I must now consider the discretionary power contained in part 2 of Direction 21 (the “Direction”) a full title of which “Direction – Visa Refusal and Cancellation under Section 501 – No. 21”.
85. The primary considerations are contained in clause 2.3 of the Direction which reads:
“…
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.”
86.Clause 2.3(a) must be considered in conjunction with clause 2.5 on the direction which provides:
“…
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).”
87. There are no children whose interests need be considered. It is plain that the factors to be balanced are the seriousness of the offences, recidivism, deterrence, the expectations of the Australian community and hardship.
88. Breaches of section 234 are always regarded as serious; so much is evident from clause 1.9 (c) and clause 2.6 (c) of the Direction. And giving untruthful evidence must always be viewed in a serious light. But that said, the Visa Applicant’s conduct should I think be considered, as Mr Murphy contended, as coming at the lower end of the scale. In contrast with many other cases before the Tribunal there were no false refugee claims. The documents produced were not false in the sense that the event in question did not, so I have found, occur, and leaving aside for the moment the fact that the first death certificate did contain incorrect statements. it was true at least as to the central fact that death had occurred. I note in this particular context a salient point made by Mr Murphy. The events which gave rise to this hearing took place in 1997 some two years before the visa application was lodged, and thus tending to favour the view that the Sister is dead and that this is not part of a fraud.
89. The Respondent has correctly contended that the central issue is not as to whether the Sister is dead but rather as to whether the Visa Applicant made false and misleading statements. This is perfectly true but nevertheless a finding that the Sister died must have a bearing on this aspect. Again I asked why on the basis that the Sister is dead, the events which gave rise to this hearing occurred. I have no explanation at all. But the fact that the Visa Applicant occasioned considerable difficulty to the Embassy, leaving aside the costs of this four-day hearing, should not be taken out of context. At the end of the day the Sister did die. The Visa Applicant is the last surviving relative within the relevant regulation and taking into account the general run of breaches, hers figure at the lower end of the scale. That is not to say that untruthful evidence can ever be regarded otherwise than in a very serious light. It must be remembered however that the Visa Applicant is ill educated and that she has lived through the Pol Pot regime, which may have skewed her vision as to what is permissible.
90. The danger of recidivism appears to me to be low. Once given a visa, the Visa Applicant would have no need to offend against Australian law. She has persistently sought a visa ever since 1993. Deterrence in this context must be a factor against the Respondent. Her conduct both in relation to the Embassy and before me has been such that it should not in the ordinary course of events be rewarded with a visa. As I prepared this decision, I was struck over and over again by just how untruthful her and her husband’s evidence was. Nor am I convinced by some of the other and supporting evidence. In fact the only evidence which could be treated as being true without reserve is that of the Applicant herself and the older son who lives in Australia. I refer in this context to the oft-quoted statement of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, that statement, at 155‑156, reads as follows:
“This section sets out the circumstances in which non-citizens may become illegal entrants. Many of the provisions of the section are reflected in the regulations, particularly in Sch 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first subsection to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. 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. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
It should be noted though, that the facts in this matter are unusual to say the least. As Exhibit R1 indicates, documents produced in Cambodia are very often untrue; this accords with my own experience. The central documents in this matter are at least true, as I have found, as to the death of the Sister.
91. Hardship within clause 2.17 is both a strong factor and a weak factor. This seemingly contradictory statement can be reconciled. On the one hand, the weak factor is that the Visa Applicant and her family have lived in Cambodia, apart from the Visa Applicant’s siblings for nearly 20 years. They are established and have a life in Cambodia and visits by the Australian relations are possible and have occurred. Put thus, hardship is a weak consideration. On the other hand, the Applicant and the two Australian brothers have no children and the Visa Applicant’s children constitute the next generation in this family. Their tragic history under the Pol Pot regime makes it easy to understand why they would wish to be reunited. The Visa Applicant has similar (although not exactly similar) desires and no doubt considers that Australia offers her family a far better future than Cambodia ever could.
92. What then are the expectations of the Australian Community? In Re Juppand Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, I took the view that one must look to the views of a reasonable person or someone in the centre of the political stratum, and not to a person at either end of it. I must then envisage a reasonable person in possession of the same facts as I have, and who is aware of the untruthful behaviour but at the same time is aware of the fact the visa Applicant is the last sibling out of seven, of whom four survive and where three are in Australia. As I noted in Jupp (supra), and having regard to Deputy President McMahon’s decision in Re LehaandMinister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054, the Direction should be interpreted in an humane fashion. When one takes all of these factors into consideration one cannot help but think that a reasonable or centre of the road notional person might well decide in favour of the Visa Applicant.
93. I should note that Ms Grewal, the Respondent’s solicitor, cross-examined the witnesses with singular competence and elicited the inconsistencies with patience and skill. At the same time, Mr Murphy was able, at the end of the day, to persuade me that this was a case, and notwithstanding the extent and degree of the false evidence, where the discretion should be exercised in favour of the Visa Applicant. I note that I have come to this conclusion only after much deliberation and by the very narrowest of possible margins. False evidence of the nature presented to me should not, except in very rare and exceptional circumstances, be rewarded with a visa.
94. In the circumstances the decision under review is remitted to the Respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Soc Kieng Hua.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: .......................................................................................
AssociateDates of Hearing 12 November 2002; 13 November 2002;
3 March 2003; 4 March 2003
Date of Decision 7 April 2003
Solicitor for the Applicant Mr K Murphy, Craddock Murray
Neumann SolicitorsSolicitor for the Respondent Ms Grewal, Blake Dawson Waldron Solicitors
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