Kim and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 363
•23 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 363
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/330
GENERAL ADMINISTRATIVE DIVISION ) Re HIM KIM Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date 23 April 2003
PlacePerth
Decision The decision under review is set aside and the matter resubmitted to the respondent with a direction that the visa applicant not be refused on the ground that she fails to meet the character test contained in s501 of the Migration Act 1958. [Sgd Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration – character test – allegations of false and misleading conduct not substantiated – no improper use of the migration system in making unsuccessful protection visa application.
Migration Act 1958 – s501
Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon, Federal Court WAG/26 1989 (unreported judgment delivered 8 May 1990)
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
23 April 2003 The Hon C R Wright QC., (Deputy President) The Application
1. This is an application to the Tribunal for review of a decision of the respondent’s delegate made on 17 June 2002 refusing the grant of a sub-class 309 Spouse (Provisional) visa to Ms Socheat Lach (the visa applicant) on the ground that the she did not pass the character test within the meaning of s501 of the Migration Act 1958 (“the Act”).
the Hearing
2. The application was heard in Perth, WA on 17 March 2003. The applicants were represented by Mrs M Le Sueur of the Catholic Migrant Centre, Perth, and the respondent was represented by Mr A Jenshel of counsel. Oral evidence was given by the visa applicant by telephone link from Cambodia and with the aid of an interpreter. The review applicant too gave oral evidence assisted by an interpreter. Oral evidence was also given by Rev John Lachlan and Pastor Chhom Kol. The following documents were taken into evidence.
(a) Section 37 (“T”) documents (2 volumes) - Exhibit “A”.
(b) Statement by Pastor Chhom Kol – Exhibit “B”.
The Issues
3. The first issue for the Tribunal to determine is whether the visa applicant passes the character test under s501 of the Act. If the Tribunal finds that the applicant does pass the character test the decision of the delegate should be set aside. In determining whether the visa applicant passes the character test and, if necessary, whether it should exercise its discretion so as to refuse the visa on character grounds, the Tribunal is to have regard to Ministerial Direction No 21 – “Visa Refusal and Cancellation Under Section 501” issued by the respondent under section 499 of the Act (Direction No 21).
4. The respondent contends that the visa applicant does not pass the character test and therefore the Tribunal ought to exercise its discretion to refuse the visa to her. The visa applicant is the wife of the review applicant, Mr Him Kim.
5. The respondent relies on the following allegations to substantiate its contention:
(a)On 29 October 1996 the visa applicant applied for a sub-class 676 visitor visa (short stay) (Exhibit “A” pages 123 to 126). The visa applicant declared that she had previously been known by the name Chahk Viet Lach. On 1 December 1998 the visa applicant applied for a further sub-class 676 visitor visa (short stay) (Exhibit “A” pages 137 to 140). In this application, the visa applicant included her daughter Thida Lach and again declared that she had previously been known by the name of Chahk Viet Lach. However, the visa applicant falsely declared various particulars in this application, in that she failed to declared that she had two sons, Vichet Lach and Panha Lach remaining in Cambodia and she failed to declare that she had previously travelled to Australia.
(b)The respondent asserts that the visa applicant also falsely declared her purpose for the visit to Australia as within weeks of arriving she demonstrated a pre-determined intention to stay in Australia by resigning from her gainful employment with the International Committee of the Red Cross in Phnom Penh.
(c)On 10 March 1999, the visa applicant again applied for, and was granted a sub-class 686 visitor visa (long stay). Before the expiry of this visa the visa applicant married Mr Phat Soum on 23 May 1999 after a short acquaintance. (T12 page 191A). The marriage subsequently broke down and the visa applicant failed to advise the respondent department that the marriage had broken down. It is the respondent’s contention that this conduct demonstrates the visa applicant’s willingness to mislead the department to obtain a beneficial result for herself.
(d)The visa applicant lodged an application for a protection visa on 6 June 2001. The respondent submits that the application for a protection visa was based on embellished and spurious claims in an effort to further her period of stay in Australia. The protection visa application was refused but the visa applicant applied for review to the Refugee Review Tribunal (RRT). The respondent asserts that the application to the RRT was an effort to prolong her stay in Australia and that the claims for fear of persecution were contrived and false.
(e)On 6 October 2001 the visa applicant married the review applicant Him Kim, again after a very short acquaintance. (No specific allegation of false or misleading conduct have been made, The inference appears to be that this was a sham marriage)
(f)On 1 February 2002 the RRT affirmed the decision of the delegate refusing the visa applicant a protection visa (Exhibit “A” page 357). Following the RRT decision the visa applicant lodged the application for a sub-class 309 Spouse (Provisional) visa on 24 April 2002. The respondent contends that the visa applicant supplied false and misleading information by declaring that Vichet Lach was her dependant when she was unaware of his whereabouts or welfare at the time of lodging the application. She also failed to declare that she had been known by the name of Chhak Viet Lach.
(g)Overall, the respondent contends that the historical evidence clearly shows that the visa applicant has taken advantage of the Australian migration system in order to access a permanent residency status in Australia. (Again, no specific allegations of misconduct are made. The inference appears to be that the migration system has been abused in some way).
6. These contentions by the respondent were countered by the applicant’s contentions as follows:
(a)(i)Ms Lach failed to declare that she had two sons, Lach Vichet and Lach Panha remaining in Cambodia.
Ms Lach advised the interviewing officer at her interview at the Australian Embassy on 27 June 2002 that her failure to declare that she had two sons was a mistake, an oversight. There is no reason to doubt this claim. The existence or otherwise of her two sons is irrelevant to the visitor visa application. In fact, it usually assists an applicant for a visitor visa application if the applicant has family remaining in their country of origin. There is no discernible benefit in not including the two sons on the form, and therefore no reason to doubt that this was an innocent mistake.
(ii)Ms Lach failed to declare that she had previously been in Australia.
Ms Lach says that this was a mistake. Her nephew assisted in the completion of the Visitor visa application form, and failed to provide this information. While Ms Lach takes responsibility for the incomplete nature of the information, again, Ms Lach did not stand to reap any benefit from failing to provide this information. In fact, the provision of information that she had previously travelled to Australia and returned without any problems, could only have assisted the decision maker to find that she had a history of abiding by conditions on previous visas, so it would have been to her benefit to provide this information.
(b)That Ms Lach falsely declared the purpose of her visit to Australia.
(i)Ms Lach states that the reason she resigned from the Red Cross was that her foster mother, an Australian citizen residing in Sydney was sick and therefore she wanted to remain longer in Australia. As she did not have sufficient leave entitlement to cover an extended stay, she had no option but to resign.
Ms Lach denies the allegation that she falsely declared her purpose in visiting Australia. She states that when she came to Australia, she intended simply to visit her foster mother in Australia, as she had done on a previous occasion. After her arrival she wanted to remain longer in Australia when she realised how sick her foster mother was. Then she formed a relationship with an Australian citizen and decided to remain in Australia.
It is well recognised within the Migration program that people come to Australia with a variety of visas, and for a variety of reasons, and then decide that they would like to stay here. In fact, it is for this very reason that there is an on-shore migration program. This issue was considered by the Federal Court in Saravan v MIMA [2001] FCA 938 (20 July 2001). This was a case involving an applicant for a tourist visa, who clearly planned to later lodge an application for a business visa. The Federal Court considered the purpose of a tourist visa and, noting that a Tourist (Short Stay) visa is included as one of those visas which must be held by an applicant, Heeley J commented: “It is possible that the drafters of the regulations had in mind people who apply for these visas with no thought of any subsequent purpose to be achieved in Australia after the end of the visa period and then, while they are in Australia, conceive the idea of applying for a Business (Long Stay) visa. However, the much likelier situation, and that which the regulations obviously contemplate, is that someone will come to Australia for a temporary period in the hope that they may apply for a subsequent visa later for another purpose, such as business.”
There is no evidence that Ms Lach made any false declaration as to the purpose of her visit to Australia. She had previously visited Australian and returned to Cambodia at the end of her visit. On this occasion, while she was in Australia, her circumstances changed and she took advantage of opportunities legally available to her under the Migration Act to try to resolve her situation.
Ms Lach married her husband, Phat Suom after a short acquaintance. While a short relationship before marriage may be unusual in some cultures and cause doubts in a decision-maker’s mind, there is no evidence that Ms Lach’s relationship with Phat Suom was other than a genuine marriage.
In fact Soum Phat was not free to marry, as he had not divorced his previous wife.
However Ms Lach claims that she was not aware that he was not free to marry. She states that he showed her his divorce certificate. This Divorce Certificate was also provided to the Department. There was no reason for Ms Lach to doubt its authenticity. This allegation would seem to reflect more on the character of the previous husband than it does on Ms Lach.
A home visit conducted by immigration officials onshore on 16 August 2000 failed to find Ms Lach and her daughter resident with the sponsor at the claimed marital home.
In her record of interview, dated 12 July 2002, Ms Lach stated that because her husband was overseas at the time of the visit, she and her daughter were living elsewhere. The decision made by the Department that Ms Lach was not living at the address given, was based on one interview with a woman and a young child.
Ms Lach maintains that the woman living in the house, Sokhme MEM was having an affair with her husband, and therefore it was in her interests to mislead the Department as to the nature of the relationship between Ms Lach and Mr Phat.
On 10 May 2001 Ms Lach presented to a domestic violence support worker at WAYSS for support.
(c)Ms Lach failed to inform the Department that she had separated from her spouse.
Ms Lach recognises that she should have told the Department that she had separated from her former husband. She states that she didn’t know that she had to tell the Department and that she was told by a Domestic Violence outreach worker not to tell the Department about her situation. Nevertheless, Ms Lach recognises that she did the wrong thing in not telling the Department as she was obliged to do.
Ms Lach explained in her interview that she believed that as she had made a spouse application, there was no need to also make a protection visa application. This is a perfectly logical explanation. Migration applicants are often in a position to make more than one type of application. It is of no consequence that she should choose one type over another.
(d)The decision of the RRT was based principally upon findings that the visa applicant’s fear of harm, insofar as caused by threats was not of such severity as to constitute persecution and the perpetrators of the threats were not motivated by a Convention reason. The RRT rejected the claim that threats continued against the applicant after she came to Australia.
It is not possible to infer from the RRT’s findings that the visa applicant’s application was spurious in any way. Although unsuccessful the claims were substantial and had merit.
(e)Ms Lach’s admission that she wanted to marry on shore and that she wanted to remain in Australia do not prove that her marriage to Him Kim was not genuine. People marry for a variety of reasons, and often for more than one reason. This has long been recognised by both the Courts and the AAT.
In Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported judgment delivered 8 May 1990) the Federal Court held that: People enter marriage [or de facto relationships] with a variety of purposes and motives, hopes and anticipations. It is not necessarily inconsistent with a genuine relationship that it was entered into by one or both of the parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, is whether at the time the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others.
(f)The visa applicant declared Vichet Lach was her dependant, but at the time of doing so, she provided a written explanation of her claim which was true and which thus enabled the respondent to assess the validity of her claim. The information was not false and misleading as alleged. Her failure to declare her previous name of Chhak Viet Lach was irrelevant.
(g)Ms Lach denies that she abused the migration system. She made two applications which were ultimately rejected. She attempted to follow the system that was in place, within the law, to remain in Australia.
Findings
7. I listened carefully to the evidence given at the hearing and I read the 400 pages of T documents (Exhibit “A”) with special emphasis upon those issues relied upon by the respondent. It was noteworthy that not all of the adverse findings made against the visa applicant in the decision of the Minister’s delegate were pursued by counsel at the hearing before the Tribunal. In the circumstances, this course was entirely appropriate as some of the delegate’s findings and comments did smack of hyperbole. Nonetheless Mr Jenshel presented a lucid and well structured argument in favour of sustaining the delegate’s decision. Had he not done so, I may well have delivered an oral decision. As it is, in light of his address, I have carefully reconsidered the evidentiary material before reaching my conclusions. I was also greatly assisted by the highly persuasive arguments presented by the applicant’s advocate.
8. I do not need to discuss the evidence in detail because in all essential respects I accept the contentions advanced by Mrs Le Sueur which have been noted in paragraph 6 above. However to be a little more specific, I find:
(a)That the visa applicant’s failure to disclose her two sons in the application of 1 December 1998 was a mistake and was not motivated by deceit.
(b)That the visa applicant’s failure to disclose that she had previously travelled to Australia was, similarly, a mistake and was not motivated by deceit.
(c)That the visa applicant did not falsely declare her purpose for visiting Australia.
(d)That the visa applicant’s marriage to Phat Suom was a genuine marriage and her failure to advise the respondent that the marriage had broken down was not motivated by an intention to mislead.
(e)That the visa applicant’s application for a protection visa was bona fide, albeit unsuccessful, and that her claims of fear of persecution were neither contrived nor false.
(f)That in the application dated 24 April 2002, the visa applicant’s claim that Vichet Lach was her dependant was not, in the circumstances, misleading or deceitful, notwithstanding that it was incorrect.
(g)That the visa applicant’s failure to declare her previous name of Chhak Viet Lach was not false or misleading.
(h)That the visa applicant’s marriage to the review applicant Him Kim is a genuine and continuing marriage.
(i)That the visa applicant has not been shown by the evidence to have abused or taken improper advantage of the Australian migration system.
Conclusions
9. There are no allegations of criminal or other misconduct raised against the applicant apart from those mentioned in the original decision of the Minister’s delegate or discussed in the foregoing paragraphs of this decision. My role is to stand in the place of the original decision-maker and to arrive at the correct or preferable decision on the material before me (see Bushell v Repatriation Commission (1992) 175 CLR 408). This is not an appeal in the strict sense, but is a rehearing.
10. On the basis of the material before me I am satisfied that the visa applicant passes the character test propounded by s501 of the Act.
11. Accordingly, the decision under review will be set aside and the matter will be resubmitted to the respondent with a direction that the visa applicant not be refused on the ground that she fails to meet the character test contained in s501.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: KL Miller (Administrative Assistant)
Date/s of Hearing 17 March 2003
Date of Decision April 2003
Representative for the Applicant Ms M Le Sueur
Catholic Migrant Centre
Counsel for the Respondent Mr A Jenshel
Solicitor for the Respondent Australian Government Solicitor
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