Lorenz and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 628
•21 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 628
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/166
GENERAL ADMINISTRATIVE DIVISION ) Re MELVYN LORENZ Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENEOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date21 June 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and the matter is remitted to the respondent with the direction that the visa not be refused on character grounds.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
IMMIGRATION - spouse visa - whether failure to pass the character test - false or misleading statements to immigration authorities – bogus documents - successive visa applications - work without permission – marriage to Australian citizen - decision under review set aside.
Migration Act 1958 – s501
Re Naufahu Fauonuku and Minister for Immigration and Multicultural Affairs [2001] AATA 242
Re Czasak and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 420
REASONS FOR DECISION
21 June 2004 Mr S P Estcourt QC., (Deputy President) 1. In this case the Tribunal finds in favour of Mr Lorenz who has applied to set aside a decision of the Minister refusing to grant a spouse visa to his wife, Mara Lorenz, formerly Mara Khun, to allow her to come from Cambodia to join him in Australia, on the ground that she failed to satisfy her that she passed the character test posed by s501 of the Migration Act 1958 (“the Act”).
2. The reason for the Tribunal’s decision is that, of the some twelve reservations held by the Minister about Ms Khun’s character, the Tribunal has found only one to have substance, namely that Ms Khun engaged in employment contrary to a condition of a bridging visa. As to that matter, the Tribunal finds however, that in all the circumstances, her conduct has not demonstrated that her enduring moral qualities are such that it is necessary for the public good to refuse her entry into Australia.
3. The first character concern expressed by the respondent in this case is that at question 14 in her application for migration to Australia, the visa applicant declared that the only other name she had been known by, apart from Mara Lorenz, was Mara Khun. That is said to be a false and misleading statement, as a relative of hers, Chanda Khun had lodged an immigration document referring to the visa applicant as Neang and the visa applicant subsequently admitted that her mother called her Neang.
4. As to this, the Tribunal is satisfied on the evidence of Ms Khun, tested by cross-examination, that the name Neang was merely a pet name or a nickname given to the visa applicant by her mother, and her failure to declare it in her visa application form does not, in the necessary sense, amount to false or misleading information.
5. The next concern expressed as to the visa applicant’s character was that at question 22 of her application for migration form, she declared that she was previously married to Mr Chea Hourn who was deceased, whereas subsequent house checks conducted by migration officials elicited opinion from former neighbours of the visa applicant in Phnom Penh that her husband was in fact alive.
6. There are two issues related to the question of whether the visa applicant’s husband is dead, to which I will turn in a moment. Insofar as the fact of the matter is concerned however, the Tribunal accepts the evidence of Pastor Sao Yan, a pastor in The Church of The Nazarene in Phnom Penh who knew Chea Hourn as a member of the Church, who visited the scene of the car accident in which Chea Hourn was killed in 1997, and who saw his body placed in an ambulance and taken to a public crematorium.
7. It is true that Pastor Yan initiated attempts to obtain a document attesting the circumstances of Chea Hourn’s death and that some doubts surround the nature of an inquiry which was conducted before such certification was forthcoming from Heung Ty, a member of the Senate of the Kingdom of Cambodia. However, documentary evidence is unnecessary in the face of Pastor Yan’s uncontradicted evidence of the fact of the death of Chea Hourn. Expressions of opinion of former neighbours of the visa applicant when visited by Embassy officials, in the absence of any direct evidence of a positive sighting of Chea Hourn, do not outweigh Pastor Yan’s unequivocal account.
8. The first issue related to the question of the fact of the death of the visa applicant’s former husband is that the visa applicant provided a death certificate as evidence of the death in support of her visa application. It appears quite likely that the certificate is a bogus document, although it is in fact signed by a Mr Im Sisovann who was an employee of the District Health Operation in charge of the epidemic section. When confronted with the material falsity of the document he signed, namely that he had never been the Director of the Health Centre and that his co‑signatory Rithy Sopheara had never worked in the Centre Mr Sisovann said:
“I was asked to issue that document by putting Rithy Sopheara as the medical doctor and myself as the Director of the Centre … I admit that the document was made by me. I was asked by Chea Hourn’s relative to produce the document.”
9. Notwithstanding that there is some ambiguity about Mr Im Sisovann’s statements, it would appear probable that the death certificate is a bogus document. There is however, no evidence that the visa applicant was in any way complicit in the production of that document, or that she knew of its falsity. Her uncontradicted and unchallenged evidence was that her lawyer in Australia had asked for a death certificate and as a result she told her son in Cambodia to go to where her late husband was cremated and get a death certificate. She received that certificate and provided it to the Government, but she denied in cross-examination any involvement in obtaining a fraudulent certificate. She said that she was in Australia at the time, and that is so, and that she asked her son to obtain both the death certificate and a translation of it. The visa applicant was cross‑examined extensively on this issue and her evidence was not shaken, namely, that her lawyer in Australia asked her to obtain a death certificate and that she asked her son in Cambodia to arrange for it. There is no evidence that she was either involved in, or knew of the probable false nature of the document and the purported translation that resulted.
10. The next issue which arises in relation to the death of the visa applicant’s ex‑husband is a concern arising from a field check and interview by migration officials of one Kao Socheat.
11. The report of the field check in this respect reads as follows:
“We then met with Kao Socheat at her house, located two doors away from Khun Mara’s house. Kao Socheat told us that she was asked by two Embassy staff about Khun Mara’s husband and she told them the true story as she knew it. She claimed that at the time she was asked by Embassy staff, she knew that Khun’s husband was alive, so she had to tell the truth. Later on, when she was found by Khun’s family that she was the informant(sic), she was told by Khun that her former husband had deceased. Kao Socheat claims she had no idea how and when he had passed way.” (my emphasis)
12. That field check occurred on 11 November 2003. The earlier field check referred to in the passage set out above was on 31 May 2002. In a statement made by Kao Socheat at the request of and facilitated by the visa applicant following the first field check she said:
“I would like to clarify that, on 31/05/02, I told the Australian Embassy that the husband of Ms Khun Mara had a new wife and a son and that he had left Khun Mara for approximately 7 years and I did not know where he lived. After that, I knew that the husband of Ms Khun Mara had definitely died of a traffic accident.”
13. It is contended on behalf of the respondent, firstly that Ms Socheat’s evidence supports the proposition that the visa applicant’s ex-husband is still alive, and secondly gives rise to a character concern in that the visa applicant prevailed upon Kao Socheat to make a false statement.
14. In the Tribunal’s judgment, having already found that Chea Hourn is in fact dead, the most likely explanation is that Ms Socheat believed, when spoken to by Embassy officials on 31 May 2002, that Chea Hourn was still alive, although she hadn’t seen him for some years and she was telling Embassy officials the truth “as she knew it” at that time. When it was discovered by the visa applicant that Kao Socheat’s belief was being used as evidence to establish that Chea Hourn was still alive, the visa applicant not unreasonably obtained a statement from her, but that statement was once again only a statement of belief in that Kao Socheat then accepted that Chea Hourn was dead only because the visa applicant had told her that was the case and she believed that accordingly.
15. Such a version of events appears borne out by the visa applicant’s evidence in cross-examination, when she said in answer to the proposition that she prepared a statement herself and claimed that that statement was prepared by Socheat Kao:
“Kao Socheat didn’t know that my husband was dead. She only knew that after I came back from Australia. Then the Embassy didn’t understand. Then I went to Kao Socheat to make a statement to correct it because she didn’t know back then …”.
16. There is nothing in the visa applicant’s conduct in this regard which in the Tribunal’s opinion reflects adversely on her character.
17. The next character concern expressed on behalf of the respondent was that at question 69 of the visa application form, the applicant was asked to declare her previous addresses for the past 10 years and that she answered by giving addresses which were inconsistent with those provided in previous visa applications. To the extent that there is an inconsistency in this respect, the Tribunal accepts the evidence given by the visa applicant by way of explanation that she did live at all of those places and that after moving to Phnom Penh she maintained her address in Siem Reap until the place she was living in Phnom Penh was divided into houses and she “got a real address”.
18. I say “to the extent there is an inconsistency” because question 69 itself enquires as to the countries in which a person has lived for 12 months or more during the last 10 years, but then requires only that the person list the “last permanent address in that country”. There would not seem to be any doubt that the last permanent address of the visa applicant in Cambodia before coming to Australia was her address in Phnom Penh.
19. Another issue in relation to address information arises because in an interview through an interpreter at the Australian Embassy in Phnom Penh, after being asked about where she had lived, the visa applicant was asked whether she had ever lived in Siem Reap and she answered “no”. When it was pointed out to her that she had indicated in previous applications that she had lived there from 1984 to 1994 and was shown a previous application she said “I forgot”. She was then challenged about how she could have forgotten, and she replied that she had lived there for a short time so she didn’t remember and that as she didn’t have a house or anything to eat she left.
20. The visa applicant’s responses at interview are curious, but the Tribunal is not satisfied that they reflect on her enduring moral qualities. There was no reason for her to lie about having lived in Siem Reap, the information that she had, was already in the possession of the Australian Government and there was no advantage to her in having lived or not having lived in Siem Reap. It is quite likely that either her answer that she forgot, or her answer that she had only lived there for a short time and didn’t have a house or anything to eat, or both, were explanations born out of embarrassment or nervousness in the interview situation and were by way of “knee jerk” reactions not really capable of giving a true insight into or truly reflecting on her character in the sense in which it is under examination in this case.
21. The next matter contended as going to the visa applicant’s character is that between 27 March 2001 and 27 June 2001, the visa applicant’s bridging visa carried a “no work” condition and on 17 May the visa applicant was found to have been working at a meat works at Murray Bridge in contravention of that visa condition. This breach was deliberate in the sense that the visa applicant knew that she was not allowed to work under the terms of her visa, but nevertheless did so because she wanted the money to support herself and her children.
22. Illegal overstaying in Australia and unlawful work are breaches of s235 of the Act and although they will often result in visa refusal on character grounds in a subsequent application, that is not always the case. Unlawful work is not necessarily to be considered “serious” within the meaning of Ministerial Direction No. 21 issued for the assistance of decision-makers in cases such as this for the reason that they are not punishable by imprisonment as are breaches of s234 of the Act involving the provision of bogus documents or the making of false and misleading statements to migration officials. (It is noted however that offences against s235 of the Act can be regarded as “serious”. See for example the decision of Deputy President Block in Naufahu Fauonuku and Minister for Immigration and Multicultural Affairs [2001] AATA 242).
23. In the present case the Tribunal is persuaded, in view of what it finds to be the absence of any other character blemishes, to accept in the circumstances of this particular case that working in breach of a visa condition for the period of time involved does not demonstrate that the visa applicant’s enduring moral qualities are such that it is for the public good to refuse entry to Australia.
24. Deputy President Handley took a similar view on the facts before him in the case of Czasak and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 420, where he said:
“Thus Mr Polack’s proven misconduct is his remaining in Australia unlawfully and working without permission for a period totalling about 2½ years. The Tribunal recognises that such breaches of Australia’s immigration (sic) should be regarded seriously. Nevertheless the Tribunal notes the discussion of what is meant by good character in Goldie (supra) and Msumba (supra) which refer the decision maker to the applicant’s ‘enduring moral qualities’ … as the Tribunal said in Re Msumba at para.37, an applicant is not required to meet the highest standards of integrity. The issue is whether the deficiencies in his or her character are such ‘that it is in the public good to refuse the visa’.
Mr Polack’s misconduct in breaching Australia’s immigration law was serious. Nevertheless, on balance, the Tribunal is not satisfied that given other evidence as to Mr Polack’s character, background and situation, his character is so deficient as for it to be in the public good that he should be refused entry. …”.
25. One matter which influences the Tribunal’s judgment in the present case is the insight into the visa applicant’s enduring moral qualities provided by her voluntary return to Cambodia to attend her son’s funeral, notwithstanding her belief that to do so would lessen her chances of returning to live permanently in Australia. As to this, she said in evidence:
“About 4 of 5 months after I married Melvyn, I heard that my son had died and I told Melvyn that I had to go back. Melvyn pleaded with me not to go because he feared that I would not be able to get back to Australia. Melvyn offered to go instead, but I felt that I had to go. In the end we both went to Cambodia, but Melvyn had to come back to Australia. I stayed in Cambodia. While in Cambodia I applied for a visa to come back to Australia.”
26. The next matter contended against the visa applicant’s character is that she had been attempting to prolong her stay in Australia since she arrived here on the 29th December 1996 in that she successfully applied to extend her stay as a visitor until 13 November 1997, and subsequently unsuccessfully applied to remain permanently in Australia under a general residence visa, and then under a protection visa. It is now said that she is attempting to stay in Australia by marrying the review applicant, a matter I will return to in a moment. Before doing so however, the Tribunal’s view is that there is nothing illegitimate in the visa applicant making applications for visas to allow her to remain in Australia, so long as she has a genuine belief in the merit of those applications and there is no evidence to suggest that she did not.
27. In the absence of evidence pointing to bogus applications, it cannot in the Tribunal’s view be said that a successful extension of a visitor visa and subsequent unsuccessful applications for further visas of themselves demonstrate that the original entry into Australia was not for the purposes stated in the original visa application, or that they of themselves say something adverse about the visa applicant’s character. Indeed it would be curious in this case if the visa applicant was so determined to stay in Australia that she voluntarily returned to attend her son’s funeral in the circumstances described above.
28. Next it is contended against the visa applicant that her marriage to the review applicant is contrived, given that at the interview with migration officials at the Embassy in Phnom Penh, she was unable to pronounce her husband’s name, or answer simple questions relating to her husband and his family.
29. The Tribunal is satisfied that the visa applicant and the review applicant are in a genuine marriage and not one contrived for migration purposes.
30. Evidence was given by friends of the applicants, Cecil and Don Mounsey, as to their introduction of the visa applicant to the review applicant and of the ensuing relationship which resulted in a marriage which “came as no surprise” to the Mounseys. Moreover, the evidence of the visa applicant and the review applicant tested by cross-examination was unshaken.
31. This is not a case where the review applicant and the visa applicant met one day and married the next. On any view of the evidence they met after the visa applicant’s release from migration detention on 22 June 2001, and there was something approaching the order of six months between the couple’s first meeting and their marriage. In the meantime there was a period when the relationship had developed to a stage that they lived together before becoming married.
32. That the visa applicant was unable to answer the questions referred to is capable of explanation in a number of ways, not the least of which is that on the evidence there does not appear to have been any great exposure by the review applicant to the visa applicant of his family. It is also noted that the name Lorenz is not the easiest name to pronounce for someone whose first language is Khmer.
33. The next matters which are contended on behalf of the respondent as going to the visa applicant’s character arise from a report of Professor Metzer, a psychologist at the University of South Australia, who interviewed the visa applicant in Cambodia without the aid of the interpreter, notwithstanding his recognition that the visa applicant had a relatively poor command of English, and who, amongst other things, reported the visa applicant as saying that she had stopped her schooling at the age of 8 years, and that at the interview with the Australian Embassy in Phnom Penh the questions were asked in English and there was no interpreter present.
34. The visa applicant in her evidence makes it clear that she went to school beyond the age of 8 and that the interview at the Australian Embassy was conducted in the presence of and with the assistance of an interpreter.
35. I am surprised that Professor Metzer conducted, over a period of some three hours, an interview of the depth upon which he reports and also conducted psychological testing of the visa applicant, all without the aid of an interpreter. He recognised in his report that her command of English was poor and that she was dysfunctional in English language, understanding and expression. To the extent that his report of what the visa applicant told him at interview differs from her evidence given before the Tribunal, I prefer the evidence given before the Tribunal and I attribute any inconsistency not to a lack of integrity on the part of the visa applicant, but on the very likely explanation that Professor Metzer misunderstood what he was being told by the visa applicant communicating with him in English.
36. In his closing submissions to the Tribunal, Mr Prince, counsel for the respondent, said:
“We say that either the visa applicant provided incorrect information to Prof. Metzer in relation to her educational details, or of course Prof. Metzer may have got them wrong in his noting of them.”
37. The Tribunal finds the latter explanation to be the most likely cause.
38. Another matter contended against the visa applicant’s character is that there is an inconsistency between the visa applicant’s evidence that her first two children were born in 1979 and 1981 and the dates of birth shown in the Cambodian “family book” submitted with her visa application which notes the birth of her son’s Chea Hane and Chea Vicheth in 1982 and 1984 respectively.
39. The visa applicant’s explanation for providing this information was that the details were already in the family book and she wouldn’t have been able to change it, and that the family book itself showed those incorrect dates as a result of the insertion of incorrect information designed to enable the boys to attend school in Cambodia.
40. Against the background of these children being born in refugee camps after the turmoil of the Pol Pot years and the subsequent overthrow of the communists, the Tribunal does not find that the entry of incorrect details in the Cambodian family book to enable the children to enter school reflects, in the necessary way, on the enduring moral qualities of the visa applicant, if indeed it was her, as opposed to her late husband who completed the relevant entries.
41. The next matter said to reflect adversely on the visa applicant’s character is that her typed witness statement tendered before the Tribunal stated that she had requested money from her family in Australia to enable her to come to Australia, whereas in her oral evidence before the Tribunal she stated, consistently with her brother’s evidence contained in his witness statement, (corrected in this very respect by the deletion of the relevant sentence), namely that she had not asked for money to come to Australia
42. The Tribunal is not prepared to make a finding adverse to the visa applicant in respect of this issue. The provenance of the visa applicant’s witness statement is unclear. However, the Tribunal notes that both her statement and that of her brother were originally cast in identical terms, suggesting they were not prepared in an intimate, but rather in a general way, by another person. Presumably they were prepared in Australia in English and the only evidence given by the visa applicant as to the accuracy of the contents of her statement was that her youngest sister read the document to her in Khmer and explained it to her. When asked whether she signed the document after her sister explained it to her, she said that she couldn’t remember and moreover, she said that she could not remember what her sister told her at the time, although she believed that it was the truth.
43. Ordinarily, a document would not be tendered in evidence on the basis of such an ambiguous adoption by a non English speaking witness and in the circumstances, the sentence remaining in the visa applicant’s statement contrary to her oral evidence but being crossed out in her brother’s statement is not something warranting a finding adverse to the visa applicant’s credit.
44. The final matter contended against the respondent is that in her original visa application to come to Australia as a visitor, the person who completed the application, (who was not the visa applicant), answered a question in the application form indicating that the visa applicant was earning $US1,500 per month. The following exchange is taken from the transcript of the visa applicant’s cross-examination by Mr Prince:
“Mr Prince:You have told the Australian Government that you were earning $US1,500 a month. Is that correct? Is that what you were earning?
The Interpreter: No I never said that.
Mr Prince: Do you recall how much you were earning from the restaurant?
The Interpreter: Sometime when is busy, I earn around $100 and sometime $50.
Mr Prince:Mara, can I put it to you again, you don’t recall saying to the Australian Government that you were self‑employed and earning $US1,500 a month is that correct?
The Interpreter: No, I never said that. Maybe those who filled the form for me put it that way. I never.
Mr Prince: You have never earned $US1,500 a month?
The Interpreter: No, I earn very little.”
45. In the absence of evidence of the circumstances surrounding the completion of that visa application, the Tribunal is in no position to make a finding either that the figure of $1,500 is a false statement as opposed to a numerical error, or that the visa applicant should be required to accept responsibility for the answer, if it is indeed false, on the basis often found appropriate, namely that she signed the visa application as being true and correct.
46. It follows from all that I have said that on the material before the Tribunal there is nothing which reflects on the enduring moral qualities of the visa applicant to the extent that it can be said that it is for the public good that she should be refused entry to Australia. In a case such as this, the visa applicant carries the onus of satisfying the Tribunal that she passes the character test. However, having dealt with the matters said to reflect adversely on her character, and there being no other suggestion that the visa applicant is not of good character, the Tribunal is satisfied that she passes the character test.
47. The Tribunal sets aside the decision under review and the matter is remitted to the respondent with the direction that the visa not be refused on character grounds.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 21 April 2004
Date of Decision 21 June 2004
Counsel for the Applicant Mr Jacob Van Dissel
Solicitor for the Applicant Van Dissells
Counsel for the Respondent Mr Rodger Prince
Solicitor for the Respondent Australian Government Solicitor
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