Lien and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 380
•29 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 380
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1104
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL LIEN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date29 April 2005
PlaceSydney
Decision The decision under review is affirmed. ..............................................
Deputy President
CATCHWORDS
MIGRATION ACT – application made for Class UF, Subclass 309 Spouse Provisional Visa – application refused – visa applicant fails character test – consideration of discretion contained in Direction 21 – false documentation used to travel in and out of Australia – false or misleading statements made in visa application – consideration of child’s interests – decision affirmed
Migration Act 1958 ss. 501, 234
Re Richardson and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 264
Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107
Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029
Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984
Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Sebastian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 497
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 147
REASONS FOR DECISION
29 April 2005 Mr J Block, Deputy President PART A INTRODUCTION AND GENERAL
1. The decision under review is the refusal by the Respondent’s delegate of a Class UF, Subclass 309 Spouse Provisional Visa applied for by Nguyen Thi Thu Hang (“the Visa Applicant”); that application was sponsored by her husband, Michael Lien, who is the Applicant. The Applicant was represented by Mr Francis Tran, a solicitor, while the Respondent was represented by Ms Stella Koya of Phillips Fox solicitors.
2. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with one exhibit marked A1 and being a document entitled “Personal Statement by the Visa Applicant dated 13 October 2004” reading as follows:
I, Thi Thu Hang, NGUYEN, of 93 Bach Dang, Ha Ly, Hong Bang, Hai Phong City, NORTH VIETNAM, do solemnly and sincerely declare as follows:
1. I was born on 13/08/1981.
2. In my statement dated 10th June 2003, which I provided to the Department of Immigration (DIMIA), I said “After carefully studying and knowing that the Indian and Australian Visa Service Office was unbelievable, I took my passport back. At the end of 1999, I met a former classmate named Trung, who studied with me at Lorraine Martin College. He said that he could ask another organisation to have my Visa extended and I agreed. Several days later, I was granted a long term Visa. After that, with this Visa, I returned Vietnam to visit my family and relatives on holidays. I came back Australia after 10 days staying in Vietnam.
3. The aforementioned long term visa is a false visa. Although the passport bears the name Nguyen Thi Thu Hang, the date of birth is different to mine. As stated above, I was born on the 13th August 1981 but the person in that visa was born on 31st May 1979. This is a false passport that Trung provided to me. Now I submit this information to both the Tribunal and the Department and I express deep regret over my actions. At the time I was a young 18 year old student in a desperate situation, and naively utilised wrongful means to extend my visa.
I ask the Tribunal and the Department to consider the interests of my child and also the excellent relationship between my husband and myself and in making their decision.
Your kind consideration would be greatly appreciated by my husband, me and my child.
…
3. Evidence was given by the Visa Applicant and the Applicant and in the case of the Visa Applicant by telephone link to Vietnam. The Visa Applicant was assisted by an interpreter in the Vietnamese language.
4. The Respondent’s Statement of Facts and Contention dated 20 December 2004 is detailed as to the relevant facts, and so much so that it is helpful by way of commencement of these reasons, to include its content under that head “Facts” containing clauses 2-22 inclusive as follows:
FACTS
2. On 16 June 2003, the Visa Applicant applied for a Subclass 309 spouse visa on the basis of her marriage to the Review Applicant. (T5, f36- 47) A certificate of marriage was provided with the application. (T5, f63). Also provided was a birth certificate of the child Elle Louise Lien born in Vietnam on 21 February 2003.
3. In her application form, in response to the Q6, 'have you…been refused a visa in Australia" – the Visa Applicant ticked, "No". (T5, f26). In response to the Q67, 'Have you been convicted of a crime or an offence…' the Visa Applicant ticked "no". (T5, f44).
4. On 16 June 2003, the Review Applicant completed Form 40SP 'Sponsorship for a partner to migrate'. (T5, f48-54)
5. On 17 July 2003, the Respondent wrote to the Visa Applicant and the Review Applicant requesting further information. (T6, f10, T7 f108).
6. On 29 September 2003, the Visa Applicant was interviewed by the Respondent. The Interview Report provides an assessment that there was no evidence to substantiate the Visa Applicant's claims. (T15 f119- 121) At the interview the Visa Applicant made the following claims:
6.1 That she met the Review Applicant in June/July 1999.
6.2They commenced living together on the 9 February 2000 At Francis Street Lidcombe.
6.3That she lived with him continuously till she returned to Vietnam on 8 April 2002.
6.4That she did not have any evidence to prove that she met the Review Applicant in Australia.
7. On 13 October 2003, the Respondent wrote to the Visa Applicant and the Review Applicant requesting further information (T17, f123)
8. On 14 October 2003, the Review Applicant provided further information and stated that it was being provided in response to a telephone conversation on the 30 November 2004. (T19, f125)
9. On 10 December 2003, the Respondent wrote to the Visa Applicant stating that it was considering refusing the subclass 309 Visa under section 501 of the Act. She was given until the 28 January 2004 to provide comments and information. (T21, f147) The letter stated that the matter to be taken into account would include:
9.1 That the Visa Applicant entered Australia on a student visa on the 15 March 1998 on a Class TU, subclass 560 student visa which ceased on 24 August 1998.
9.2 The Visa Applicant applied for a further student visa on 21 August 1998. This was refused on 11 February 1999 but the Visa Applicant did not depart Australia.
9.3That the Visa Applicant remained unlawfully in Australia until April 2002.
9.4That there were no records to show that she attempted to legalise her status.
9.5 That the Visa Applicant had shown disregard for Australian immigration laws by remaining unlawfully in Australia for over 3 years.
10. On 10 January 2004, the Visa Applicant sent in her response. (T23, f150) She stated, that that she wanted to make two points in response: a) that she was unaware of her visa status and b) there were 'compassionate claims of family members'. She stated amongst others, that:
10.1She was simply unaware that her visa was invalid.
10.2 She applied to the Visa Service office on George Street and left her passport with them to have the visa extended. After she received the refusal letter she returned to that office and they suggested she leave the letter with them.
10.3 She received no response and engaged the help of a former classmate who took her to an 'Immigration Service Office'. She forwarded her passport and fees and several days later she was granted a 'long term visa'.
10.4She returned to Vietnam for 10 days to visit her family and friends and returned to Australia.
10.5 If she had realised her visa was invalid she would have done everything to legalise her status in Australia.
10.6 She was concerned of the effect the non-favourable decision would have on her daughter and husband.
11. On 6 February 2004, the Review Applicant wrote to the Respondent enclosing an Australian Police Certificate for the Visa Applicant. (T24,f155) The police certificate disclosed that the Visa Applicant was:
11.1 On 16 December 1999, convicted and fined $500 in the Bankstown Local court for shoplifting.
11.2 On 25 February 2000, convicted and fined $200 in the Parramatta Local court for shoplifting.
12. On 18 March 2004, the Respondent wrote to the Visa Applicant stating that it was examining whether there were grounds to refuse the Visa under section 501 of the Act and included a list of matters that would be taken into account. (T29, f165)
12.1 That she arrived in Australia on 15 March 1998. She lodged an application for a further student visa on 21 August 1998. The application was refused on 11 February 1999.
12.2 That the Department had no record of the travel at the beginning of the year 2000 by a person of the Visa Applicant's name travelling on her passport.
12.3 That the Visa Applicant had stated that she could not give the exact dates of her travel and therefore the Department was unable to check her claims against the airline records.
12.4 That either she was not the person who entered Australia on 15 March 1998 or that she used another passport to make the travel to and fro from Vietnam in 2000 and when she returned to Vietnam in 2002.
13. On 19 March 2004, the Respondent sent an email to the Review Applicant stating that: (T30, f167)
13.1 There was no evidence that the Visa Applicant had ever left Australia.
13.2That the Visa Applicant had failed to provide any evidence that she had returned from Australia. She had failed to provide:
13.2.1A passport and claimed that it was lost.
13.2.2Details of dates, airlines she travelled on, etc.
14.On 19 March 2004, the Visa Applicant was asked to consider taking a three-way DNA test. (T31, f168)
15.On 14 April 2004, the Visa Applicant responded to the letter of 18 March 2004 and stated that: (T32, f172)
15.1 She was unable to provide any further information because she herself did not know what happened. (f172)
15.2 Her husband had contacted the airlines to find out details of her travel but they were unable to find any records of her travel. (f172)
15.3 She was able to now recall that she left Australia probably on the 22 or 24 December 2000 flying Singapore Airlines with a stopover in Hong Kong before flying to Hanoi. She returned to Australia after 10 days. (f172)
15.4 She departed Australia in mid April 2002 flying Thai International Airlines stopping in Bangkok and before flying to Hanoi. (f172)
15.5 She was concerned that the Department had concluded that she was not the person who she says she is or that she used another passport for travel. (f172)
15.6 It was now obvious to her that the 'Visa Service Office' that her previous classmate referred her to 'was not approved or registered by the Immigration department. (f173)
15.7 That she was unable to provide any further information. (f173)
16. The DNA tests results showed that the Review Applicant was not excluded from the identification as the biological father of the child. (T37, f184-189) and that the Visa Applicant was not excluded as the mother. (T40, f194)
17. On 27 May 2004, the Visa Applicant wrote to the Respondent stating that the DNA tests confirmed the child's paternity. (T34, f175)
18. On 18 July 2004, the Respondent refused to grant the Visa Applicant a spouse visa because she did not pass the character test. (T2, f11). The delegate decided not to exercise his discretion in her favour. In his reasons for the decision, the delegate found that the applicant did not pass the character test because of her past criminal conduct and her past and present general conduct. The delegate found that:
18.1 the Visa Applicant had 2 convictions for shoplifting. Additionally, in failing to disclose them in her application form, the applicant provided false and misleading information in her application form; (f12)
18.2 the Visa Applicant overstayed her visa and remained unlawfully in Australia for a period of over three years; (f12)
18.3 the Visa Applicant initially claimed that she could not recall details of her travel or the airlines she travelled in. She subsequently provided some details of the airlines. The Visa Applicant and her sponsor were asked to make enquiries with the travel agent and the airlines involved in the travel and provide details. No details were provided and no evidence submitted that they had made these checks; (f13)
18.4 the Visa Applicant assumed another identity to facilitate her travel to and from Vietnam; (f13)
18.5 the documents including ID Card, Birth certificate and household registration card that the Visa Applicant submitted in support of her application were all issued after April 2002; (f13)
18.6 the applicant's total lack of memory was implausible and found that the Visa Applicant had deliberately withheld information from the Department (f14)
18.7 the Visa Applicant failed to declare that she had a criminal record in her application. (f14)
19. On 26 August 2004, the Review Applicant applied for a review of the decision. (f3)
20. On 13 October 2004, the Visa Applicant provided a statement to the Tribunal and to the Respondent which states that:
20.1 She travelled on a false visa and used a false passport.
20.2She was a young, 18 year old student and "naively utilised wrongful means to extend her visa".
21. On 25 October 2004, in response to the Respondent's statement of issues, the Visa Applicant stated that, "Nguyen Thi Thu Hang' was the same person who applied for a student visa on 21 August 1998.
22. On 5 November 2004, the Review Applicant provided a statement to the AAT and to the Respondent.
5. As a matter of balance I include, in respect of the Applicant’s Statement of Facts and Contentions dated 29 November 2004, its content under the head of “Facts” clauses 1-7 inclusive as follows:
Facts:
1. The Review Applicant, Michael Lien, was born on 16 April 1975. He arrived in Australia on 21 December 1979, when he was four years old. Mr Lien was educated in Australia, having attended primary school, high school, TAFE and University.
2. Mr Lien was granted Australian citizenship in 1983. That is, he became an Australian citizen 21 years ago. He is currently employed full time as an accountant with the firm Wynn & Bennett Pty Ltd. He also manages his own private accounting business and does sub-contract work for E & G Consultants Pty Ltd. It is therefore evident that Mr Lien was brought up and educated in Australia. He has been practising as an accountant here for several years.
3. Mr Lien and his wife, Thi Thu Hang Nguyen, have been in a long term marital relationship. That relationship continues today and has resulted in the birth of their daughter, who is now over 19 months old. The child was born on 21st February 2003.
4. The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) requested that the couple undergo DNA testing to confirm the parentage of the child. The results confirmed that the child is that of the Review Applicant and the Visa Applicant.
5. Ms Thi Thu Hang Nguyen was born on 13th August 1981. She was granted a Class TU subclass 560 student visa on 4th March 1998. This visa was valid to 24th August 1998. Ms Nguyen arrived in Australia on 15th March, 1998. On 21st August 1998 Ms Nguyen was granted a WA010 visa, valid to the 18th March, 1999.
6. At the end of 1999 Ms Nguyen obtained a false visa bearing the same name as hers, however, the date of birth of this person was different to Ms Nguyen’s actual date of birth. As stated, Ms Nguyen’s date of birth is 13th August 1981, whereas the date of birth of the person identified in the visa was 31st May 1979. This is a false passport. When she obtained this passport Ms Nguyen was an 18 year old student.
7. In January 2000 Ms Nguyen returned to Vietnam for 10 days before travelling back to Australia. In late April, 2002, Ms Nguyen returned to Vietnam and is now awaiting the AAT Decision.
6. It is convenient to include in this Part A, part of an interview report and being that part which is contained in T15 page 119 and page 120 of an interview which took place in Bangkok on 29 September 2003, as follows:
…
Do you have some English
- Yes
How long study in Australia
- 6 months
When did you meet your sponsor
- 1999
When in 99
- about June or July
And tell me about how you came to meet
- I shared a room with a family in Australia and my sponsor is a friend of these people – he came to visit at the weekend
When did you start living together
- 2000
What month
- 9 February 2000
Where did you go to live together
- Lidcombe – Francis St
What was this accommodation – did you rent this apartment
- We rented from his uncle – I stayed with him and his mother
And did you live with him continuously until you left Australia
- Yes
And what address did you live at
- 7/12 The crescent Berala
Have you lived at any other address apart from above two
- one more place on the same street – The Crescent
And where is your sponsor currently staying
- Cowper Street
When did he move there
- After the trip to Vietnam
And what does your sponsor do in Australia
- He is an accountant with The Quantum in George Street
Has he worked with this group since you have known him
- Yes
Has he got many friends in Australia
- Yes because he lived there since very young
Did you meet his friends
- Yes
Why are there no photos of you and your sponsor in Australia
- We rarely had photos taken because he did not want to take a photo
Did you family in Vietnam write to you at the addresses that you have claimed
- No they just telephoned – never sent a letter – when I first arrived in Aus my younger brother sent me letters but after that no
Is there anything that you have that would evidence that you ever met your sponsor during your period in Australia
- I can give you a friends telephone number who knows us
- We did not think of marriage or paper work to present with this application
When did you first speak of marriage
-Before I returned to Vietnam in December 99
If you had spoken of marriage in Dec 99, and you did not return to Vietnam until April 02 why did you not celebrate a marriage
- I asked the lawyer and he said that I need to return to Vietnam before doing anything else
If you studied for 6 months in Australia how did you support yourself after that
- My parents sent me money
Did you work
- No – since I joined him he supported me totally – rent – meals and food
Why did you chose to have a baby before you had finalised your migration status
- We truly love each other and having a baby is not a problem for us and we decided to keep the baby
Have you discussed what you would do if this migration visa is not granted
- Yes of course we have – he said that if the application is not granted he said that he will work in Vietnam and then go back to Aus and then come back to Vietnam with me
When you left Australia there are not even any photos at the airport – why not take them then
- He is fat and does not like photos – even at party with friends
Have you any phtoos (sic) of you with his mother and sister in Australia
- Yes – when I was in Australia both of us telephoned my family here but post office does not keep record
Where does his sister live in Australia
- Previously she lived with Michael and his mother but after buying a new house in Cowper Street she moved out and after my sponsor came back to Australia she asked Michael and his mother to stay there and she went back to her husbands home
Where does her husband live
- 25 minutes by car
Why was she not living with her husband when she lived with you and Michael
- Yes they did live together but now they move to the house of his family
How much does your sponsor earn
- Almost $1100 per week – he does two jobs – one in a company and also tax accountant at home
What sort of things would you do together with Michael if you went out
- Often came to my adoptive father who is Chinse (sic) citizen and went out with friends playing cards and to entertainment place to play pool.
7. A letter by the Visa Applicant to the senior migration officer in Vietnam dated 10 January 2004 (Tp150 – Tp153) proved to be of particular relevance. A part of its content (commencing atTp150) is set out in this Part A as follows:
…
In response to your letter dated 10 December 2003 regarding your concerns about the issues mentioned in that letter, I submit this letter appealing to the Minister to take into account the comments and information that I discuss below when determining the outcome of my Class UF 309 Spouse (Provisional) Migration Application.
I would like to emphasis to the Minister the following two main points that I feel are relevant in assessing my over-all situation:
1) Unaware of Invalid Visa Status
On the surface, I can appreciate the Minister’s position in believing that I am a person who has disregarded Australia’s Immigration Laws by remaining in Australia without a valid visa, but the fact of the matter was that I was simply unaware the my visa was invalid. Although I am aware that ignorance is not a valid defence and can understand that I was in the wrong, I appeal to the Minister to empathise with my situation. I am deeply sorry for my ignorance and apologise to the Australia community as a whole if I had disregarded any of its laws.
I arrived in Australia in March 1998 on a student visa and attended school for the first six months. Although I enjoyed all the new experiences of living in a new country, as you can imagine, being a sixteen year old girl living in a totally strange environment with no real support system or family members to turn to for help and not yet fully understanding the language, it was a very difficult, confusing and intimidating time for me. At the time I was very young and naïve, even simple everyday tasks like catching a train to school or the correct way to use a fork was a difficult thing to do. This being said, when it came time to apply to have my visa extended in order for me to continue with my study, I had to rely on the information and advice that people were giving me.
8. There are a few matters of a preliminary nature which can also conveniently be included at this early stage. Mr Tran conceded (correctly) that the Visa Applicant does not pass the character test and so that this matter falls to be decided under Part 2 of the Ministerial Direction, “Direction – Visa Refusal and Cancellation under Section 501 – No. 21” (“Direction 21”). Ms Koya advised the Tribunal that the Respondent accepts that the Applicant is the father of Elle, who was born in Vietnam on 21 February 2003 having been conceived in Vietnam on or about May 2002 after the Visa Applicant had returned to Vietnam. The Respondent also accepts that the marriage is genuine.
PART B THE EVIDENCE OF THE APPLICANT
9. The Applicant who is of Vietnamese origin, came to Australia with his family in 1979 when he was four years old, having been born on 15 April 1975. He was educated in Sydney and obtained an accounting qualification from Ultimo Tafe in 1997. He was half way through a degree at Macquarie University but discontinued it in order to marry the Visa Applicant in Vietnam and where he lived with her for a year thereafter. He is currently working as an accountant for Wynn and Bennett at a salary of about $70,000 per annum. He also, according to his evidence, with the consent of his employers has a private bookkeeping practice from which he derives additional income.
10. The Applicant is of course perfectly fluent in English. He said that he was not fluent in Vietnamese until he met the Visa Applicant and that his Vietnamese is now “functional”. He said that his ability to read and write Vietnamese is by no means complete. When he was a child his mother spoke to him in Vietnamese and he answered in English.
(During the hearing the Tribunal experienced great difficulty in maintaining telephone contact with Vietnam; the Applicant on occasion telephoned the Visa Applicant on his mobile and spoke to her in what sounded like fluent Vietnamese; it would be surprising if, given his background and bearing in mind that he spent a year in Vietnam after his marriage to the Visa Applicant, he were not perfectly fluent in Vietnamese. Again and during the hearing he on occasion indicated that he thought translations by the interpreter were not accurate.)
The Applicant said that he has not attended a language course in Vietnamese. (The Tribunal considers that it is doubtful whether he needs one.)
11. The Applicant and the Visa Applicant lived together for about two years before her return to Vietnam. He said that he did not know about her false documents or immigration difficulties until early 2002 when they wanted to marry. She then told him about “potential problems”. It was then decided that she should return to Vietnam and where they would marry.
12. The Applicant assisted the Visa Applicant in connection with her spouse visa application and in addition they were helped, so he said, by an immigration agent in Vietnam. At Tp44, question 67 asks a number of questions as follows:
Have you or any other person included in this application, ever:
·Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
·Been charged with any offence that is currently awaiting legal action?
·Been acquitted of any criminal offence or other offence on the grounds of mental illness, insanity or unsoundness of mind?
·Been removed or deported from any country (including Australia)?
·Left any country to avoid being removed or deported?
·Been excluded from or asked to leave any country (including Australia)?
·Committed, or been involved in the commission of war crimes or crimes against humanity or human rights?
·Been involved in any activities that would represent a risk to Australian national security?
·Had any outstanding debts to the Australian Government or any public authority in Australia?
·Been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)?
·Served in a military force or state sponsored/private militia, undergone any military/paramilitary training, or been trained in weapons/explosives use (however described)?
All of the relevant boxes were ticked “no”. In fact, the Visa Applicant was convicted on two occasions of shop lifting in Australia and the Applicant was asked why question 67, which in relation to convictions includes convictions removed from official records, was answered untruthfully. He said that there was a misunderstanding. “Someone told me that a finding of guilt is different from a conviction”. He said also that he consulted a free service in Parramatta. When asked why he didn’t insert a note in the form as to his belief, he answered that the question called for a yes or no answer only. In fact, there is a space at the end of questions 67, which although in its terms, calls for details to be provided in respect of “yes” answers, there is no reason why that space could not have been used to insert the relevant information. The Applicant made light of the shoplifting offence, he said they were minor and that the Visa Applicant was only 17. He said also that the convictions occurred in 1999.
13. The Applicant said he met the Visa Applicant at the end of 1998 but they were originally just friends and that they started living together in 2000.
14. The Applicant said that he would find it difficult to return to Vietnam and that, even though he is of Vietnamese origin, he doesn’t understand the culture and couldn’t get a job.
15. He was asked whether, if the decision were affirmed, Elle would come to Australia separately. He said that this would not be practical since she would miss her mother too much and in any event he would find it difficult to look after her. (The Tribunal indicated at that stage that it accepts that a little girl of about two should not, in the normal course, and save in exceptional circumstances, be separated from her mother).
16. Reverting to his relationship with the Visa Applicant, the Applicant said that they met at the end of 1998 when she was staying at a friend’s house. They did things together, “a normal boyfriend – girlfriend relationship”, and started living together about six months later. He asked her to move in with him in January or February 2000.
17. The Applicant said that he came to know about the convictions only when they were completing the spouse visa application. He knew that there were visa problems when he proposed. She had told him previously that she was waiting for a student visa extension, had overstayed her visa and was in Australia illegally.
18. He said that when the Visa Applicant could not obtain an extension, she spoke to a college friend (Trung) who said that he, Trung, could get it done. She gave Trung her passport and he somehow got it extended “under a different person with the same name but a different date of birth”.
19. The Applicant said that the Visa Applicant didn’t look at her documents; he said that “she may have become aware later but too late”.
20. I do not intend in this Part B or in Part C to traverse evidence as to actions by the Visa Applicant. Her actions will be dealt with in relation to her own evidence; discrepancies between her evidence and that of the Applicant (and there were a number of such discrepancies) will be noted.
21. The Applicant was asked whether while in Vietnam he sought employment. He said that he did search the internet but without result. He also said that his accounting qualifications would be of little use in Vietnam where, according to him, they do not have accounting standards and also “they don’t have tax or it works differently”.
22. The Applicant said that the Visa Applicant’s family is one of considerable means. They own a hotel and in addition they import rice products. He described her family as “well off”. In addition to the hotel and business they have three houses and the Visa Applicant and Elle live with the Visa Applicant’s parents in one of them. The house in question has all normal modern conveniences, including running water and sanitation. However, he said that that house is inferior to a similar house in Australia because “Vietnam is a third world country”. He said that the home is not separated into rooms in the manner which would be conventional in Australia. The Visa Applicant helps her mother in the hotel (perhaps more aptly described as a boarding house) and also in the rice importing business. Her parents want her (the Visa Applicant) to come to Australia because they think it will be better for her here.
23. The Applicant was asked whether he thought of applying for work in Hanoi (the Visa Applicant and her family live in Hai Phong which is some three hours distance from Hanoi). He said that he did not. He was asked whether as an accountant there would not be work in an international company. He said that if there were work for him, his earnings would be considerably less than they are in Australia.
24. Elle was conceived in May or June 2002 when he visited the Visa Applicant in Vietnam. They had intended to marry at that time but she could not do so because of a bicycle accident. Elle’s conception was, so he said, accidental; he said “we were cautious but it happened”.
25. The Applicant and the Visa Applicant communicate frequently; they are able to see each other and have conversations through Yahoo Messenger, coupled with a web cam apparatus.
PART C THE CROSS-EXAMINATION OF THE APPLICANT
26. Tp43 (part of the spouse visa application) stated in answer to question 54 that the parties met on 20 March 1998 in Sydney. When this was put to the Applicant he said that this was the date of her arrival but that they met “probably at the end of 1998”.
27. Question 69 at Tp45 asks “In which countries have you lived for 12 months or more during the last 10 years?” That question was answered but without the inclusion of an address in Francis Street, Lidcombe, where they lived for a period. Mr Tran later contended that if they lived in Lidcombe for less than 12 months it was unnecessary to include that address. He was incorrect; the manner in which the question is phrased makes it clear that in respect of any country in which they lived for more than 12 months all residential addresses are required.
28. The Applicant said that the Visa Applicant lived on money sent to her by her mother whenever it was required. After they started living together, he provided and paid for all of the basics such as rent, food etc. He said that she did not work; when asked what she did he said that she was “hanging out”. She visited her godfather’s home nearby and played cards. Her English was functional and this was the language in which they conversed.
29. The Applicant insisted that he became aware of her lack of status in 2002, two years after they started living together. He said that she told him about the false documentation in 2002.
30. Detailed cross-examination as to what he knew about her false documentation and whether she had one or two passports need not be dealt with in detail in these reasons. He said that she did not know what a visa looks like (; the Tribunal doubts whether this can be true). He said that she did tell him that her student visa had expired but he did not realise how important the visa was or “how difficult a visa could be”. He said also that he thought she was waiting for a visa. When it was put to him that he knew in 2002 that she was in Australia illegally, he answered “not illegally”. He did however then agree that if she didn’t have a visa she was necessarily in Australia illegally.
31. The Applicant said that they talked to a few friends (in a similar position) and also consulted some free immigration services. Free immigration services were consulted because he did not want to pay for any such service.
32. The Applicant said that the Visa Applicant arrived in Australia in February 1999 on a student visa. He said that he did not know that she then applied for a second student visa which was refused. He also didn’t know that when she went to Vietnam for 10 days in January 2000, she used false documentation. He said that he knew the Visa Applicant was in Australia illegally “so that it would be difficult but it wasn’t important to me”
33. The Applicant was referred to a statement dated 10 June 2003 which appears at Tp100 and Tp101; (it may be noted that no witness statement was served in respect of the Applicant and so that the statement in the T documents was treated as serving that purpose). The second and third paragraphs on Tp100 read as follows:
Hang and I first met in Sydney around the middle of 1999 through mutual friends. At that time she was sharing a house with a friend of mine. We started out as friends, hanging out together, going movies, parties etc, but as our relationship developed we grew fonder of each other and started dating on a more intimate level. With this natural progression, I began to worry about her being alone in Australia with no real family or close friends so I asked her to move in with me. At the start of 2000 she moved in with me and my mother and together we shared a townhouse in Berala for about two years.
During this time we were happy and got along great so the next step was to think about marriage and starting a family. This was where our difficulties began, because it was at this stage that we had to think about her being an overseas student having visa renewal difficulties. Hang was in Australia on a student visa attending Lorraine Martin College for the first six months of her stay in Australia. She was unable to continue with her studies after that because her visa had expired and she was waiting on a renewal which never turned good. Because of this problem we sort legal advice and was informed that it was best for Hang to go back to Vietnam first before we apply to the DIMIA for a partner visa for her.
The Applicant was asked what he meant by difficulties in the third paragraph. He said that he knew that she was trying to get a renewal.
34. The Applicant denied that he ever received any letters from the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) He said also that he did not think that there should be any problem as to identity; the Respondent’s concerns are set out in part at Tp13 as follows:
…
According to Departmental movement records there is no evidence that Nguyen Thi Thu Hang departed Australia in the year 2000 as claimed. Furthermore, as Nguyen Thi Thu Hang was not the holder of a valid visa at that time, she would have been unable to enter Australia in the year 2000.
Given these circumstances, I find it likely that if Nguyen Thi Thu Hang returned to Australia as claimed, then she assumed another identity to facilitate this travel.
In addition to the above findings, this applicant has submitted personal documents in support of this application which have all been issued since her claimed returned to Vietnam in April 2002.
The birth certificate was issued on 19 July 2002. This birth certificate was not issued from information held in the Vietnamese authorities’ records of births but on the basis of a declaration made by the applicant in the year 2002. The person, Nguyen Thi Thu Hang who was granted a student visa on 4 March 1998, would have been required to submit a birth certificate in support of her student visa application. Therefore the birth of Nguyen Thi Thu Hang born on 13 August 1981 must have been registered prior 1998. It is usual for children in Vietnam to submit a birth certificate to the school authorities when they begin their schooling. The fact that the applicant has not submitted a birth certificate showing the date of the registration of her birth either at the time of birth or at the time she first began schooling, and certainly prior to the issue of her student visa in 1998 raises legitimate concerns that this applicant is not the Nguyen Thi Thu Hang was granted a student visa on 4 March 1998. When this Department made a telephone enquiry to the office of local authorities that issued this birth certificate on 19 July 2002, it was stated that the birth records for the year 1981 had been lost. However, the birth of Nguyen Thi Thu Hang who went to Australia on a student visa must have been registered before her departure from Vietnam in 1998 and there are therefore still legitimate concerns regarding the true identity of this applicant.
The identity card of the applicant was issued on 28 May 2002.
The household registration of the applicant was issued on 15 August 2002 and it states that the applicant did not move to this address until 15 August 2002. The applicant claims that she returned to Vietnam in late April 2002. She has submitted no evidence to show where she stayed during the period April to August 2002.
35. When asked about her shoplifting convictions his answer was that he didn’t know about them because “they didn’t come up”. Tp156 sets out her convictions as follows:
…
Court Date Offence Court Result
Parramatta 25/02/00 Shoplifting Fined $200.
Local Court
Bankstown 16/12/99 Shoplifting Fined $500.
Local Court
…
The Applicant said that he went to work and “she was probably hiding it from me”. He knew about them when they were completing the spouse visa application; he said that he didn’t know what she stole or what the value was. He said also that as regards the question in the spouse visa application at Tp44 as to criminal convictions that he thought “it was a finding of guilt because she was under 18”.
Further cross-examination as to the criminal convictions indicated that the Applicant did not take them seriously; as he put it, “shops lose millions each year”.
36. As to the false visa he said that she thought it was genuine and only discovered later that it was not, and when she returned to Australia. According to the Applicant, she, the Visa Applicant, thought that Trung was doing a “proper job”. And when she got back to Australia in 2000 “it was too late”.
37. It was put to the Applicant that question 6 in the spouse visa application (Tp36) was answered “No” where the question is “have you or any other person included in this application ever been refused an entry permit or visa in Australia?” His answer was simply and somewhat ingenuously that “she didn’t get her visa”.
38. Tp125 is the first page of a letter dated 14 October 2003 by the Applicant to the Australian Consulate General in Vietnam. The last paragraph on that page reads:
The front cover of my Income Tax Return for the 2001, 2002 and 2003 financial year. These Tax Returns shows that I have declared to Australian Government that my wife has been my de-facto spouse since that time.
It was put to the Applicant that he disclosed the relationship to the tax authorities and not to DIMIA. His answer was that he did so to obtain tax benefits. As to DIMIA, he said that there was no relevant form and moreover there was no obligation under any statute upon him to disclose.
39. In re-examination the Applicant said that he knew nothing of section 48 of the Migration Act 1958 (“the Act”) which has the effect that where a visa is refused, other applications (excluding a protection visa application) are not permitted. And as to question 69 at Tp45 and his failure to disclose the Lidcombe address his answer was “I took a shortcut”.
PART D THE VISA APPLICANT
evidence in chief
40. The Visa Applicant was born in August 1981. She arrived in Australia on a student visa in March 1998; she said she was allowed to stay in Australia for six months but that the visa was renewable for five years.
41. After the six month period expired she intended to reapply. She sought advice from an agent in George Street, Sydney, who told her that she needed a key card which evidenced financial support. She sought a key card from a bank two weeks before her visa was due to expire but the bank refused. She went back to the agent who, so she said, told her that there was no need to worry, that she should await a letter from DIMIA. She received a letter from DIMIA towards the end of 1998 and because she could not understand English, took it to the agent. The agent said that she had 28 days within which to find an Australian citizen sponsor.
42. There was considerable evidence as to the agent in George Street; much of that evidence was confused and confusing. The agent consisted of two people, an Australian called Dennis and an Indian called Paul. She did not remember the agency name although she thought it was something like “Student Services”. She said, as she was to say repeatedly, “I was 17 at the time”. She was staying with a Vietnamese couple and asked them to sponsor her. The application was completed with the help of a friend and given to the agent. She denied that she ever at any time received a response to that application and in particular a refusal. She contacted the agent regularly and was in each occasion told that she should wait. The Visa Applicant confirmed that the application in question was her second application for a student visa. She also said that “the first people didn’t want to sponsor her and she asked a different sponsor and he was older and he wanted to take me out and I was scared”. She remembered that the application had to be signed in front of lawyer or doctor. She then said that the agent told her that she did not need a sponsor.
43. The Visa Applicant again denied that she ever received a refusal from DIMIA. However, she approached an old school friend for help; that friend was Trung. He said that he could help and would “do it for me”. At his request she handed him her passport.
44. The Tribunal asked her why, if the agent had told her to await a response from DIMIA, she sought help from Trung. That question was not answered.
45. Trung gave her back a passport and visa a month later. He said that it was valid and that he obtained it from DIMIA.
46. A number of (very) leading questions as to her documents led to answers that she travelled to Vietnam for 10 days on those documents believing them to be valid. When she was asked when she realised that her passport contained incorrect information as to her date of birth there was a long silence, followed by a complaint as to the question. But after a time she said that she became aware of the discrepancy when she tried to enrol at Kent College.
47. She was asked whether there was anything in the passport other than her date of birth which was incorrect. She said that it also reflected the wrong date of arrival in Australia. She arrived in 1998 and not 1997 as the passport stated. She realised that this was so for the first time when she read it at Kent College.
48. She was not accepted at Kent College because (so she said), she had to get an attendance record from Lorraine Martin College (which she attended when she first arrived in Australia). She could not get an attendance record from Lorraine Martin College. When asked what she did then, she answered that she did nothing at all. As to why she could not get an attendance record from Lorraine Martin College given that she had said that her attendance record was outstanding, was never explained.
49. When again asked why she then consulted Trung if all she had to do was to wait for the agent, she answered, but only after a long silence that the agent had closed down.
50. The Visa Applicant said that in respect of the first shop lifting charge, she stole two shirts and on the second occasion she stole a small item worth about $30 or $40. She paid the fines with money provided by her parents.
(The T documents do not include any information as to what was stolen and there are no available sentencing remarks. The amounts of the fines might perhaps suggest that the value of the items involved were higher than she had specified).
51. She said that she did not tell the Applicant about the thefts. She said also that she asked him to try, while in Vietnam, to obtain a job in Vietnam but that she knew of no job for which he applied. She said that he wouldn’t in any event obtain employment because he could not speak Vietnamese.
52. The Visa Applicant lives with her parents and helps her mother. When asked what she thought about the false statements and thefts, she said “I regret. I was too young”. She said that she was 17 or 19.
53. The Tribunal asked her why, if she thought that everything was in order she sought help from Trung. She answered that she really wanted to study and the agent was no longer there. And when the agent closed down she was asked why she did not then seek help from DIMIA; her answer was that she was newly arrived, that she could not speak English and that she didn’t know where DIMIA was. It must be remembered that she consulted Trung some time after her arrival and after a six month course in English at the Lorraine Martin College.
PART E THE CROSS-EXAMINATION OF THE VISA APPLICANT
54. The Visa Applicant said that she knew nobody in Australia when she first arrived; (the Applicant had spoken of her godfather being nearby)
55. When she left Vietnam she had completed the Australian equivalent of year 10 and was in year 11.
56. She agreed that in order to obtain a passport she would have submitted a registration card and an identity document.
57. When asked how long she intended to stay in Australia, she answered that she planned to stay for five years; this was so because although she had only a six month study visa it could, she believed, be extended for five years.
58. She said that she was permitted to work to a limited extent and earn some amounts from sewing.
59. Considerable sums of money were supplied to her by her mother. She came with US$2000 and when that had been used she simply asked for more. She paid the agent A$2000 supplied by her mother and she paid Trung A$5000 also supplied by her mother.
60. Cross-examination as to when and where she met the Applicant resulted in a number of different versions. She met him in the country; alternatively she met him at a train station (and where she spoke to him because he looked Vietnamese); further alternatively she met him at a friend’s home; and again alternatively she met him at a party. Tp102 and Tp103 contain a statement that she met him through a mutual friend, with whom she shared a house. The times involved were equally inconsistent. When asked why in Tp102 she made no mention of a train station, she said that she didn’t think it important.
61. She was asked when she told the Applicant about her visa problems. She answered with a questions; “do you mean the second visa? I don’t understand the question”. She went on to say that she told him about the second visa application when she proposed. When asked whether she meant to refer to the false documents she said “yes, I think it may be false”. When asked whether she didn’t know they were false she said “I only know it’s a problem. I haven’t been able to establish whether this is so”.
62. It was then put to her that in Exhibit A1 she said that her passport and visa were false. She asserted that she and the Applicant were not aware of any illegality until 2002 and that she was absolutely certain that this was so. She was also certain that he proposed only in 2002. She was referred to Tp120 (the interview) in which she said that they discussed marriage in 1999. Her answer was that there were discussions of marriage in 1999 but that he proposed only in 2002. She then went on to say that at the interview she had her child with her, was under pressure and may have made a mistake. When asked whether she wanted to Tribunal to accept her evidence before the Tribunal as true, and that contained in Exhibit A1 as false, her answer was “not really false but perhaps some mistakes”.
63. On the second day of the hearing she was asked whether she received a letter dated 10 December 2003 addressed to her by the Australian Consulate General in Ho Chi Minh City (Tp147 and Tp148). That letter is a notice of intention to consider refusal and it was addressed to the Visa Applicant at 93 Bach Dang, Ha Ly, Hong Bang, Hai Phong. She denied that she received it.
64. Tp150 to Tp153 is a letter dated 10 January 2004 by the Visa Applicant to the Australian Consulate General (part of which is quoted in these reasons for decision at paragraph 7 above). After describing how she obtained the long-term visa with Trung’s assistance, the Visa Applicant wrote at Tp152:
…
From these circumstances, I hope the Minister can understand that if I did disregard Australia’s Immigration Laws, it was not done intentionally. If I had realised then that my visa was invalid I would have done everything in my power to legalise my status in Australia. It wasn’t until recently when your Department informed me of my problems with my current spouse migration application that I realised what the situation was.
…
She denied that she made that statement. She said that it was possible that there was a misunderstanding. She said that it was drafted by the Applicant and that he might have made an error.
65. Her evidence as to Trung was equally inconsistent. He had been described as an old school friend. He was then described as a person who attended the same college. She was asked how she could have averred that she met him for the first time at the end of 1998. Her answer was “overseas students often meet each other – they frequent the same places and I met him at Lewisham”. She paid Trung A$5000. When asked whether this was for the false passport and the false visa, she answered that it was for the false visa.
66. The Visa Applicant said that after she decided to return to Vietnam “I agree that it’s a false passport but this is not my intention”. When it was put to her that in Exhibit A1 she said it was false, she answered “at that point of time I was too young”.
67. Tp92 is a declaration of passport loss. She said that at that time she had her passport money and other papers in her bag. When asked why she didn’t refer to the loss of the money she replied that the amount was small.
68. The Visa Applicant then gave lengthy evidence as to the circumstances in which she sought to enrol in Kent College. She said that she did in fact enrol but could not go because “they said the birth date was different”.
69. An enduring mystery which was never resolved, was how the Visa Applicant managed to leave Australia for Vietnam and to return 10 days later without leaving any record of her departure and return with the authorities.
70. The Visa Applicant was then asked why she obtained a false passport. She said that she wanted to study but she had to see Trung because she wanted to go to Vietnam in January 1999. When asked why she used a false passport, she said that she thought it was hers.
71. She was referred to question 6 at Tp36 where she had answered “no” in respect of a question as to whether she had ever been refused a visa. Her answer was that the form was completed by the Applicant. She gave the same answer in relation to question 67 at Tp44. She said that her husband consulted a solicitor and obtained advice that her shoplifting convictions were not crimes.
72. She was asked when the first conviction occurred. She answered that it occurred at the end of 1998. However, Tp156 refers to December 1999; when this was put to her she said that she did not remember.
73. When asked why, when her family was providing for her, she stole, she answered that she was young and naïve.
When it was put to her that she did the same thing three months later, she said that she did not steal “because of money”; she repeated that she was young and silly and that the things she took were not valuable.
74. Further cross-examination tended merely to point to the same inconsistencies. Since I have no doubt that she was not giving truthful evidence, and indeed was at times making up her evidence as she went along, I do not need to deal with it in any further detail. It is however, perhaps relevant to note that she said that the conception of Elle was accidental, even though she and the Applicant had never used contraceptive devices.
75. Further cross-examination as to the interview and inconsistencies between what she said then and the evidence before the Tribunal led to a statement that her daughter who was with her wanted to be fed and she became confused.
PART E THE EVIDENCE ANALYSED AND THE CHARACTER TEST
76. Mr Tran correctly conceded that the Visa Applicant did not pass the character test.
77. On the evidence before me the Visa Applicant came to Australia on a six month study visa in order to study English. During that period she became at least functional in English; she and the Applicant conversed in English. As to why she was refused a visa when she applied for another study visa is not in evidence before the Tribunal. But she knew that she had been refused. Her evidence as to the agent cannot be believed. Nor can her evidence as to Trung be believed. If Trung was paid $5000 it could only have been for false documentation and she knew that this was so. Her evidence before me to the contrary was consistently untruthful.
78. I do not believe that the false answers to questions in the spouse visa application arose in the manner described by either the Visa Applicant or the Applicant. The Applicant is a man of some considerable sophistication and education. He knew perfectly well that shoplifting convictions should have been disclosed. His evidence that they were statements of guilt but not convictions cannot be accepted.
79. Perhaps the most serious falsehoods arose from her denials that she knew that her second visa application had been refused. The course she chose to adopt did perhaps push her towards that line but her own letter (Tp150 - Tp152) (which she attributed to a mistake by the Applicant) made it clear that she knew that it had been refused. Significantly the Applicant did not at any stage say anything about that most important letter.
80. Her reasons for not going to DIMIA were equally disingenuous and not worthy of credit.
81. I do not know how she managed to get in and out of Australia without leaving a trace. It should be noted that she used the false documentation on no less that three occasions to go to and from Vietnam for 10 days and then to return to Vietnam.
82. I would not in the ordinary course regard shoplifting convictions as serious, although the fact that there were two within three months of each other is disturbing. Even more disturbing is the fact that each of the Applicant and the Visa Applicant treated the convictions of being of virtually no importance. I do not know why, coming as she did from a wealthy family, and amply supplied with money, she committed those crimes. She was young at the time, but not so young that she was not allowed to come to Australia on her own to study. Even more to the point is the fact that she is now rather older and old enough to know better than to continue on a course of untruthful conduct.
83. The Applicant is a personable young man and some of his evidence was truthful. But he cannot be believed when he said that until he proposed (in 2002) he knew nothing at all. It is also hard to believe that he knew nothing of the convictions before that time. All in all the evidence before me was such that I cannot rely on it.
PART F DIRECTION 21
84. In this Part F references to numbered clauses relate to numbered clauses in Direction 21. Clause 2.3 provides that the primary considerations are:
“2.3In 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.”
85. Clause 2.3 must be read in conjunction with clause 2.5 which provides:
“2.5The 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).”
86. In Re Richardson and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 264 I referred to a number of decisions which relate in general terms to deterrence and recidivism. Clause 89 of Richardson reads as follows:
Generally in relation to the primary consideration, I refer to a number of decisions of this Tribunal.
In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, per Deputy President Wright:
“33.In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.
In Cai Lian Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107, per Deputy President Walker:
“In my view the community expects that the migration program will be administered in a just and humane manner. That implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.”
In Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, per Deputy President McMahon:
“As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.”
In Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029, per Deputy President Walker [sic]:
“In the Tribunal’s view, [the Applicant’s] conduct indicates that she would be prepared to continue to make false and misleading statements if she perceives this to be for her benefit. The Tribunal recognises that the refusal of a visa in such circumstances is likely to deter others who may be contemplating committing similar misconduct”.
In Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984, per Deputy President Forgie:
“The fact that I am satisfied that they [the Applicants] are both likely to lead law abiding lives in the future does not, in this case, outweigh the need to deter others from adopting the same course of conduct to gain entry to Australia”.
In Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 per Deputy President Chappell:
“56. The Tribunal acknowledges that Ms Kaufman has suffered considerable hardship as a result of her separation from her husband and the uncertainty of the outcome of these proceedings. However, as the Tribunal has emphasised on a number of occasions in earlier decisions, the dilemma for the decision maker in cases of this type is to seek to balance the competing interests o [sic] the individuals involved with those of the Australian community at large.
…
57. …this hardship is not of sufficient weight to justify the exercise of the discretion to grant a visa contained in s501 of the Act. The legitimate interests of the Australian community in the maintenance of an ordered immigration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour.”
And in Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148 [sic] per Deputy President McMahon:
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.
87. I would not in the ordinary course consider that the risk of recidivism is high. If her offences were confined to offences against the Act, the grant of a visa would have the effect that she would have no need to re-offend. But the two shoplifting offences are, as I have said, disturbing. The risk may not be high but it cannot be discounted.
88. As to deterrence, I consider that to reward such flagrant dishonesty with a visa would send entirely the wrong message. The Visa Applicant’s conduct in relation to the Act (procuring and using false documents, untruthful answers in her spouse visa application and untruthful evidence before me) are all such that her conduct falls (in accordance with clause 2.6) within the very serious category. Breaches of section 234 of the Act attract very serious penalties indeed.
89. During the course of his closing submissions, Mr Tran advanced a number of arguments, some of them novel and some demonstrably incorrect. He noted that clause 2.6 deals with serious offences such as drug trafficking and armed robbery in order to point out that shop lifting cannot be treated as falling in the same category. I agree that the shoplifting offences need not be taken too seriously, although the fact that they were committed by a person who had as much money as she required and that they occurred twice within a short space of time might be cause for some concern. What Mr Tran did not deal with is her offences under section 234 of the Act. He was silent as to the false answers in the spouse application. He appeared to be relying on one version of events as recorded in her evidence, even though there were other and conflicting versions. Mr Tran also appeared to be taking the line that she did not know that the documentation was false. He did not refer to her clear admission in exhibit A1 that she knew that she was using false documentation. It is clear enough that her conduct was very serious within clause 2.6(c). Mr Tran sought to rely on clause 2.10(a) of Direction 21 which reads as follows:
2.10 It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a) a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
In effect it was submitted that there is no offence without a previous offence and a warning as to re-offending. That argument is of course, on a proper reading of direction 21 and in particular clause 2.10, without foundation.
90. Mr Tran dealt at some length with the interests of Elle which are of course primary. He sought to draw support from clauses 2.15(a) and 2.15(b) which provide as follows:
2.15 In general terms, the child’s best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen, include, but are not limited to:
(a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
His point in succinct terms was that there was no evidence of abuse and so that, and this being so, the child should be allowed to reside with both her parents. That argument was of course inherently fallacious. The interests of Elle are primary but they are not the only primary considerations.
91. Mr Tran pointed out that to refuse the visa (and to affirm the decision) would have the effect that Elle is inevitably and at all times in the future deprived of one of her parents. Put in stark terms, if she stays with her mother she will inevitably be deprived for good and all of her father except for perhaps an annual leave visit. If she, as an Australia citizen would, by contrast come to Australia without her mother she will have to be cared for by her father who would have to provide child care facilities.
92. The position is not nearly as black and white as Mr Tran sought to contend. The starting point must be (and as Direction 21 recognises) that a child’s best interests are served by her being with both of her parents. So much is so obvious that it is a truism. The best situation for any child will generally (in the absence of abuse or other abnormal circumstances) be simply that that child should be brought up by both of her parents. Mr Tran pointed out in this context that the Applicant could not obtain work in Vietnam, or if he could it would be much less well paid than similar work in Australia. He said that the Applicant spent a short time in Vietnam; a year if not in reality and in this context a short time.
93. It must be remembered that Elle has from her birth been cared for by her mother and her mother’s family. It is important to remember that that family is affluent and so that Elle lives in perfectly acceptable circumstances and in a house with all modern amenities. Mr Tran contended that the decision–maker did not take account of the fact that educational opportunities in Australia are superior to those in Vietnam. There was in fact no evidence as to educational standards in Vietnam. It is hardly likely that there are no good schools in Vietnam. There is an expatriate (diplomatic) community in Vietnam (probably in Hanoi and Ho Chi Minh City) and there are no doubt international schools. Education of this kind may be expensive but the family can on the evidence before me afford it. Moreover the Applicant does provide (substantial) maintenance for Elle.
There was in other words no evidence that Elle is in need of anything at all or that her material comforts are in any way inadequate. On the contrary the evidence before is that she is well-cared for in affluent circumstances. Nor was there any evidence that adequate education will be denied her. Clearly enough, a two year old girl should not, except in exceptional circumstances be separated from her mother with whom she has lived since her birth and as I have indicated, the evidence is that the Applicant is in any event in no position to care for her. Nor is any arrangement of this nature indefinite. Elle, as she grows older, will as an Australian citizen be able to visit Australia at will. It may be that in the future it is decided that a boarding school and/or university in Australia would be best for her. Nor on the basis that this decision is affirmed are the parties debarred from applying anew after a suitable period of time.
During the course of her closing submissions, Ms Koya argued that in her answer to question 67 in her spouse visa application, the Visa Applicant should have answered that she was obliged to leave Australia. I do not think that one can go that far. It is true that the Visa Applicant was illegally in Australia; it is equally true that at some point she would have been obliged to leave Australia. But when she did leave Australia, she does not appear to have done so in circumstances which amount to forcible removal.
94. I do not consider it necessary to refer in any detail to other cases cited before me although mention might be made if only in passing, in relation to honest dealing of the decision of DP McMahon in Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, and in relation to the primary interests of a child to Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 147; Sebastian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 497, Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054, Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31; and Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454.
95. To affirm the decision, having regard to clause 2.17 will undoubtedly result in hardship to the Applicant. However, he is a husband with knowledge of her situation. As to when he acquired that knowledge is not clear having regard to the conflicting evidence given in this context. The Visa Applicant said that she told him when he proposed in 2002 but not before that time. Mr Tran argued that she would not have told him of the criminal convictions because she was ashamed. This may be so. But at her interview she said that they were talking marriage in 1999. The distinction between talking marriage and proposing in this context is unclear. The fact is that he knew when he married her and he went to live in Vietnam with her for a year. He made little effort to find employment in Vietnam. It might be that for a person as qualified as he is, employment would be available in a large city such as Hanoi or Ho Chi Minh City, but there would surely be opportunities. To say that he would earn less is hardly an answer. Mr Tran said that his written Vietnamese is imperfect. In business circles in a city such as Hanoi or Ho Chi Minh City, his fluency in English and his accounting ability would probably be of greater importance.
96. It may be that the Applicant is reluctant to go to Vietnam on the basis that to do so would endanger his Australia citizenship. The fact of the matter is that, if this were to occur it would not be difficult, in practical in terms, for him to regain it.
97. In summary, the Visa Applicant came to Australia on a study visa to study English for six months. She may have hoped that she could extend it to five years, but there was no legal basis upon which she was entitled to say that her hopes justified her subsequent conduct. She was refused a second visa and she knew that she had been refused. She then paid $5000 for false documentation and used it on no less than three occasions. Her spouse visa application contained flagrantly false answers (with or without the connivance of the Applicant) and her evidence before the Tribunal is so inconsistent that it is hard to know which version of any particular event is true. She paid $5000 for documentation which she knew to be false. I need not again advert to the shoplifting convictions.
98. Balancing all of the various factors and taking into account Elle’s primary interests and ignoring the fact that she was conceived in Vietnam (at a time when it was perhaps somewhat imprudent to do so) and noting also that the circumstances are such that the Applicant was a person with knowledge at least before marriage of what had occurred, I cannot exercise the discretion in favour of the Visa Applicant. Accordingly, the decision under review must be affirmed.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.
Signed: A. Garcia
AssociateDate of Hearing 9 and 10 February 2005 and 7 April 2005
Date of Decision 29 April 2005
Solicitor for the Applicant Mr F TranSolicitor for the Respondent Ms S Koya
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