Lim and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 877
•27 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 877
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/1308
GENERAL ADMINISTRATIVE DIVISION )
Re CHHUN HEN LIM
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date27 September 2002
PlaceMelbourne
Decision The decision under review is set aside and the matter is remitted to the respondent for re-consideration with a direction that the visa application not be refused under s501 of the Migration Act 1958.
(Sgd S P Estcourt QC)
Deputy President
CATCHWORDS
Immigration – spouse visa application - refusal of visa on character grounds - false and misleading conduct in dealings with immigration authorities - whether fails character test - Ministerial Direction No 21 - countervailing factors – decision to refuse set aside.
Migration Act 1958 – s501
REASONS FOR DECISION
27 September 2002 Mr S P Estcourt QC., (Deputy President)
This is an application by Chhun Hen Lim ("the review applicant") for the review of a decision of a delegate of the respondent to refuse to grant an application made by Bona Chhut ("the visa applicant') for a Class UF Sub Class 309 Spouse (Provisional) Visa on the ground that the visa applicant failed to satisfy the respondent's delegate that he passed the character test posed under s501 of the Migration Act 1958 ("the Act") because of his past and present general conduct.
The following statement of facts is taken from the very helpful statement of facts and contentions prepared by counsel for the respondent, Mr Wood:
"3.On 10 December 1996, the visa applicant lodged an application for a sub-class 676 (Short stay) visitor visa (visitor visa application) (T38pp108-111). This application was later refused (T2p.7). In this application, he declared the following family composition:
(a) Thany CHHUT (father – deceased);
(b) Sokhun CHEA (mother – deceased); and
(c) Vicheka CHHUT (sister – deceased) (T35p102).
At question 6, the visa applicant did not provide any details that he was known by any other names. The failure to provide the details of other names is contrary to the visa applicant's statement that the name he used since birth (until the age of about 10 years of age) was Ke Chan Vutha. (T57p155).4.On 23 July 1997, the visa applicant lodged an application for a sub-class 560 Student (temporary entry) visa (student visa application) (T40pp117-123). This visa was granted on 7 October 1997. In this application, the visa applicant declared the following family composition:
(a) Kesin CHHUT (father);
(b) Sokhom TO (mother);
(c) Dara TO (brother);
(d) Kosal TO (brother);
(e) Mony TO (brother);
(f) Sophoan TO (sister); and
(g) Sintho TO (sister) (T36p104).
At question 5, the visa applicant did not provide any details that he held any previous names.5.The visa applicant arrived in Australia on 31 October 1997 and upon expiry of the student visa on 6 March 1998, he applied for and was granted a bridging visa in order to lodge a protection visa (onshore) (protection visa) (T3pp13-25). The protection visa is dated 20 February 1998. The visa applicant declared the following family composition:
(a) Sin KE CHHUT (father – deceased);
(b) Chea SOKHOM (mother – deceased);
(c) Chan Kosal KE (brother – deceased);
(d) Chan Mony KE (brother);
(e) Chan Sophoan KE (sister); and
(f) Chan Cimol KE (sister) (T3pp15-16).6.On 15 April 1999 the visa applicant and the applicant were introduced through a friend in Springvale, Victoria (T31p98).
7.The protection visa application was refused on 14 May 1998 and an application for review was lodged with the Refugee Review Tribunal (RRT) on 9 June 1998. The RRT affirmed the Minister of Immigration and Multicultural Affairs' decision to refuse the protection visa application.
8.On 5 February 2000, the visa applicant and the applicant were married at Springvale, Victoria (T31p98).
9.On 7 March 2000 the visa applicant applied for the spouse visa application. The visa application was made by the visa applicant by way of an 'Application for migration to Australia by a partner' dated 3 March 2000 (T9pp46-61). The visa applicant was supported by the applicant who submitted a 'Sponsorship for partner to migrate to Australia' dated 3 March 2000 (T10pp62-67).
10.At question 35 of the spouse visa application, the visa applicant failed to declare his siblings, and he declared that his father's name was Ke Son CHHUT and that his mother's name was Sokhom TO, both still living in Cambodia. At question 14, the visa applicant also failed to list any other names by which he is, or has been known.
11.All the abovementioned visa applications (including the spouse visa application) are contradictory as to the visa applicant's family composition. The spouse visa application is further contradicted by a statutory declaration made by the visa applicant on 26 October 2000 (first statutory declaration) (T33p100). In the first statutory declaration, the visa applicant states that his father's name is Sinn TO and his mother's name is Sokhom CHEA (T33p100). A further statutory declaration made by the visa applicant on 26 October 2000 (second statutory declaration) states that the visa applicant has two sisters living in Cambodia, namely:
(a) Lim Chhun HEANG; and
(b) Lim Chun HENG (T32p.99).
12.As part of the processing of the visitor visa application, the visa applicant was interviewed at the Australian Embassy in Phnom Penh on 13 June 2001 (first interview). At the first interview, the visa applicant claimed the following family composition:
(a) Sin TO (father);
(b) Sokhom TO (mother);
(c) Dara TO (brother);
(d) Kosal TO (brother);
(e) Vutha TO (brother);
(f) Sophoan TO (brother); and
(g) Sintho TO (deceased).13.At the first interview, the visa applicant agreed that he had provided incorrect information in relation to the visitor visa. The visa applicant stated further that he did not complete the details regarding his siblings before he lodged the spouse visa application because he could not remember their birthdays. When questioned further he admitted that his brother, Vutha TO, had been using the applicant's name and he was not sure which identity his brother was currently using. In the witness statement of the applicant dated 16 May 2002, the applicant refers to Vutha To (paragraph 12 above) as being the visa applicant's sister.
14.During the first interview, the visa applicant contradicted details surrounding his wedding to the applicant and stated that only 30 or 40 guests attended. This is contradicted by statutory declaration made by the applicant dated 26 October 2000 (third statutory declaration) where she stated that about 180 people attended the wedding (T31p98).
15.The visa applicant attended a further interview on 7 September 2001 (second interview) where he was notified of the intention to refuse the spouse visa application (T57pp154-156). At the second interview, the visa applicant claimed that the family composition contradictions were due to name changes during the Khmer Rouge regime. The visa applicant claimed that his father (Sin KE) was the vice-governor of Battambang province and that he was killed by the Khmer Rouge. He claimed later that he went to live with friends to avoid being killed and his remaining family all changed their names to:
(a) Sokhom TO (mother);
(b) Dara TO (brother);
(c) Kosal TO (brother);
(d) Mony TO (brother);
(e) Sophoan TO (sister); and
(f) Sintho TO (deceased).16.When questioned as to his father's name in paragraph 15 above, the visa applicant needed to refer to his family composition notes. Furthermore, the visa applicant claimed that he was previously known as Chan Cutha KE before the Khmer Rouge regime. The visa applicant failed to declare this point in his spouse visa application at question 15 (T2p9). The visa applicant's statement that Sophoan TO is his sister contradicts the first interview where he said that Sophoan TO is his brother. Furthermore, the visa applicant's statement that Sintho To is his brother is contradicted by his declaration in his student visa application that Sintho To is his sister."
The visa applicant gave evidence and tendered a written statement dated 20 May 2002 which became Exhibit 2. That written statement provides as follows:
"I, Bona CHHUT, of 12A/334, Sangkat Boeng Keng Kang No.1, Phnom Penh Cambodi, state as follows:
1. I am the visa applicant in this case.
2.I was born on 25 December 1963 at Battembang, Cambodia. The name which I was given by my parents at my birth was Ke Chan Vutha.
3.My father was the Vice Governor of Battembang Province during the time of the Lon Nol Government which stood against the Khmer Rouge.
4.In order to protect our family after the surrender of the government, my father sought to conceal his identity and former career. We were just one of many families that changed their identities around this time in order to survive.
5.I had spent the first ten or so years of my life being known as Ke Chan Vutha. I then had to adjust to being known by a different name, Bona Chhut, as well as to the new names of the other members of my family. I was forced to forget our past. This was very difficult for me as I was still only a child.
6.My father had been known as Ke Sin and changed his identity to TO Sin (Chhut Ke Kin (sic)) during the Pol Pot regime.
7.My mother had been known as Chea Sokhom and she changed her identity to TO Sokhom.
8.My parents had four sons and two daughters. My eldest brother Ke Chan Dare became known as TO Dara. The next brother was Ke Chan Kosal. He became known as TO Kosal. My younger brother Ke Chan Mony Rass became TO Mony (TO Vutha). My two older brothers now live in France. My brother TO Mony still lives in Cambodia.
9.My two younger sisters also changed their identities. Ke Chan Sophoan became TO Sophaon (sic). She also continues to live in Cambodia. Ke Chan Vimol became known as TO Sintho. She moved to Thailand. Unfortunately last year she died of typhoid.
10.Despite my father's attempt to conceal his identity, Khmer Rouge forces arrested him after the surrender of the Lon Nol Government. They murdered him. I think this happened in May 1975.
11.About a week later, in order to protect me, my mother sent me to live with another family. It is because of this move that the family name that I use is different from my siblings. I later found out that around this time my two brother escaped across the border.
12.My surrogate family, the Chhut's, were family friends of my mother. They lived about 100 kilometres from where I was born and raised. The family was comprised of CHHUT Thany as father, CHEA Sokhun as mother and CHHUT Vicheka as my foster siter.
13.During the time I was with the Chhut's, we were forced to work very hard. I worked with the children's team in the fields, clearing land and making a dam. My new family, including myself, became ill. We were starving. There were no medical provisions for the sick. As a result, my foster mother, father and sister all died within a year of each other, around 1977.
14.After the Pol Pot years ended I tried to find my real family again, but I was not successful. Over the following years I lived at various camps. From around the end of 1988 until 1992 I lived in the UNHCR Kaoidang Border Camp in Thailand with other refugees. In 1992 the UNHCR Camp sent me 'home'.
15.In 1993, after leaving the Kaoidang Camp, I met my family again. I traveled (sic) to Phnom Penh and found my aunt who was living in her old home. She brought me back to my family. I was very happy to be re-united with my mother and sisters and younger brother, because I had thought for many years that they were probably dead. I was also sad because I felt great distance from them. I had missed so much of their lives.
16.Unfortunately my mother died later that year after becoming sick with hepatitis.
17.My Cambodian Identity Card bore only the names of my surrogate family as my relatives. I had no formal documents proving that I was a blood brother and son of my original family. When I applied for a tourist visa 1996 I referred only to my surrogate family because they were my only officially recognized family. I did not intend to mislead or deceive the Australian authorities by doing this. I thought that this was the best way to do it, because I had nothing else to prove the identity of my family. I am sorry for the confusion that has followed because of this mistake.
18.In my second application form, relating to my student visa application in 1997, I understood the intention of the question required of me to give the names of my family as pertaining to my birth family, rather than the names officially recorded on my identity card. I was concerned that I may cause confusion, but I made the assumption that I would be able to clarify my family situation in an interview. I now understand that this was wrong, but again I did not intend to deceive anybody or to get something from the Australian government that I should not be allowed to have. I now understand that I should have provided all details relating to my surrogate family who are all dead, but are my officially recognized family, as well as my family of birth with whom I had reunited.
19.By the time it came to preparing my spouse visa application in 2000, I did not want to cause greater confusion. I did not know all the details of my brothers and sisters, so I left that section in the form about my family blank. I thought that I would be able to explain the situation in person, at an interview. While I was in Australia I got help from Mr Heng Phang of the Springvale Indochinese Mutual Assistance Association to complete the official forms. I did not know that I should have included in that application form my previous name.
20.I am not confident in my dealings with the Australian authorities. We only put the names of my real parents in the application. Mr Phang advised that I explain everything in an interview and leave the section listing details of my siblings blank. I was hesitant to commit the names of my siblings to an official document. This was partly because I could not give their birth dates and also because I was not sure whether my brother TO Vutha was using my former name. He adopted this practice which became common in the Pol Pot years, in order to obtain food rations for the family. I was unsure whether he continued from habit to use this name.
21.I had no intention of providing false or misleading statements to the Australian Government. I am sorry for my mistake and the confusion which has surrounded my application.
22.However the identity of my family is not a simple issue. The changes of my name and the identity of my family are the result of my real family's history and of the disruption caused by the Khmer Rouge. It is very difficult to explain such complexities in application forms. I had a lot of trouble trying to explain this to the immigration officers at the Australian Embassy, who really did not seem to want to listen me (sic).
23.I am a good person. It is very hard for me to be told by the Australian government that I cannot be with my wife because I am 'not of good character.'
24.I ask that the Tribunal understands this explanation of the confusion surrounding the composition of my family. I never meant to deceive the Australian authorities. I believe that I am of good character.
25.I want to join my beloved wife in our home in Australia. She has recently become pregnant and I am very worried that I am not there to help her during this time. She needs me to look after her and to be with her at the birth."
I find the basic facts as set out by Mr Wood in his written document. However, to the extent that that "statement of facts" extends to contentions or involves value judgments, and therefore is at odds with anything said by the visa applicant in his witness statement I accept the latter's evidence.
The visa applicant gave evidence in English. He was quite obviously an intelligent person. He was cross-examined on his witness statement and at the end of the day his evidence was neither contradicted by other evidence or shaken or undermined by cross-examination. I therefore accept in full his explanations of the matters complained of by the respondent as involving either false or misleading statements or misleading omissions in the completion of visa documents.
In particular, as to the statement in paragraph 10 of the respondent's statement of facts and contentions that the visa applicant at question 35 of his spouse visa application declared that his father's name was Ke Son Chhut, I am not satisfied from an examination of the handwritten answer to that question that indeed the visa applicant's father was listed as Ke Son Chhut. The answer to me appears quite consistent with Ke Sin Chhut.
Further, at paragraph 13 of the statement of facts it is contended that in the witness statement of the review applicant dated 16 May 2002 (Exhibit 3), she refers to To Vutha as being the visa applicant's sister, whereas the visa applicant had stated that To Vutha was his brother and that he had been using the visa applicant's name, thus explaining the visa applicant's reluctance to provide details about names by which he himself was formerly known and details of his siblings present names. I am satisfied from the evidence given by the review applicant at p.48 of the transcript of these proceedings that that was a simple mistake in her statement and that To Vutha is the younger brother of the visa applicant.
I am also satisfied, in answer to the contention at paragraph 16 of the respondent's statement of facts and contentions that To Sophoan is the name of the visa applicant's sister, and not his brother, and that any suggestion in a record of interview with migration officials that he said that To Sophoan was his brother is a simple error. The review applicant gave unchallenged and uncontradicted evidence that Sophoan is a girl's name, and that it is never a boy's name. In those circumstances it would be quite ridiculous to suggest that the visa applicant would have asserted as is suggested.
One other anomaly alluded to at paragraph 14 of the respondent's statement of facts and contentions is that the visa applicant contradicted on interview with migration officials an earlier statement in a statutory declaration concerning the number of people who had attended his wedding. He said in the statutory declaration that about 180 people attended and on interview that only 30 or 40 guests attended.
As to that, I accept the visa applicant's uncontradicted and unshaken evidence at p.35 of the Transcript that there was both a wedding and a party, and that 40 people attended the wedding ceremony and that 180 people attended the party which occurred after the wedding.
In short, whilst the fact of the matter is that in different visa applications the visa applicant gave different details of his family composition and omitted to answer the question asking him to set out any former names by which he had been known, I accept the visa applicant's explanations for so doing which are set forth in his written statement of evidence (Exhibit 2). The visa applicant in effect had families with three different names, namely the birth names of his family, the names they adopted in attempting to survive after the overthrow of the Lon Nol Government by the Khmer Rouge and the names of his adoptive family. His explanation for giving different details at different times I have no hesitation in accepting when the fact is that each of the visa applications was made by him in one name only, namely Bona Chhut.
Equally I accept his explanations for failing to give details of his former names involving as they do an element of concern for the position of his brother To Vutha.
Section 501 of the Act provides relevantly:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…501(6) For the purposes of this section, the person does not pass the character test if:
…(c) having regard to either of the following:
…(ii) the persons past and general conduct;
the person is not of 'good character'."
The exercise of power under s501 of the Act involves, first a consideration of whether the visa applicant is of good character, and second, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In considering whether a non-citizen is not of good character, decision- makers are required by Ministerial Direction No. 21, made under s499 of the Act to provide guidance in making decisions to refuse or cancel a visa under s501, to consider a number of matters which where relevant, would in the absence of any countervailing factors constitute a failure to pass the character test.
Ministerial Direction No. 21 binds the Tribunal.
One of the matters which, if relevant, would in the absence of any countervailing factors, constitute a failure to pass the character test is:
"Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement."
I am not at all satisfied that the visa applicant's statements as to his family composition and/or his omissions to state an earlier name by which he was known were false or misleading statements, the making of which would, in the absence of countervailing factors, constitute a failure to pass the character test.
As to the statements which were made as to family composition, they were at odds as between different visa applications, but they were each true. They may confuse, but they could hardly have misled, when they were plainly different when compared with earlier known visa applications made by the visa applicant himself only ever using the same name. Far from assisting him they would present a clear anomaly requiring explanation from him upon being reviewed by any migration official assessing the application.
Equally the bland omission to complete questions in the visa applications asking about his former names is in my view entirely neutral in value. Indeed to omit to complete the answer to that question would cause immediate concern to the very first official checking the form and would almost certainly lead to further inquiry and checking of the application.
The respondent's delegate may have been well justified in remaining unsatisfied by the visa applicant's explanations as to why he made these statements and was responsible for these omissions, but I have had the advantage of hearing him give evidence and be cross-examined on a statement which withstood that cross-examination entirely and which was, where required, supported by uncontradicted and unshaken evidence given by the review applicant.
Were I to be wrong in the view I have reached as to the characterisation of the statements and omissions, I would find as countervailing factors within the meaning of Ministerial Direction No. 21, the legitimate adoption in desperate circumstances of family names which differed from birth names coupled with the additional factor of the adoption by the visa applicant's younger brother of the visa applicant's birth name for the purposes of survival. These factors would in my view militate against constituting the statements and omissions as failure to pass the character test.
Had the visa applicant made different visa applications using variously the name Bona Chhut and his birth name of Ke Chan Vutha, the case would have had an entirely different complexion and the provision of differing family composition details and the failure to provide details of any former names would have assumed a sinister character at once constituting them false and misleading and depriving the visa applicant's historical background of operating in any way to countervail the effect of such migration misconduct.
There being nothing in the evidence to suggest that any other matters indicate the visa applicant is not a person of good character, and there being a good deal in the T documents, tendered as Exhibit 1, to suggest the contrary, it follows that I am satisfied the visa applicant passes the character test.
The Tribunal's decision is therefore that the decision under review is set aside and that the matter is remitted to the respondent for re-consideration with a direction that the visa application not be refused under s501 of the Act.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: KL Miller (Administrative Assistant)
Date/s of Hearing 26 July 2002
Date of Decision 27 September 2002
Counsel for the Applicant Mr G Hughan
Solicitor for the Applicant Erskine Rodan & Associates
Counsel for the Respondent Mr Derek Wood
Solicitor for the Respondent Blake Dawson Waldron
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