Loy and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 888

DECISION AND REASONS FOR DECISION [2002] AATA 888

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/166

GENERAL ADMINISTRATIVE   DIVISION     )          
           Re      THAM LOY
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS     
  Respondent

DECISION

Tribunal       The Hon C R Wright QC., (Deputy President)  

Date4 October 2002

PlaceBrisbane

Decision      The decision under review is affirmed. 
   (Sgd The Hon C R Wright QC)
  Deputy President
CATCHWORDS
 Immigration – remaining relative visa - application for preferential relative status – applicant's spouse has siblings residing in Cambodia – whether applicant is disqualified by reason of spouse residing in same country as a near relative – whether definition of "remaining relative" satisfied – false information provided to Australian authorities – whether discretion should be exercised – decision affirmed.
Migration Act 1958 – s501

REASONS FOR DECISION

4 October 2002       The Hon C R Wright QC., (Deputy President)              

1. This is an application to review a decision of the respondent's delegate made on 7 January 2002 whereby an application to grant a visa Subclass 115 (Remaining Relative) to Seak Loeub, a Cambodian citizen, was refused.

2. Seak Leoub (the visa applicant) was born in Cambodia on 15 December 1972.   Tham Loy (the review applicant) is the visa applicant's mother.   She was granted an Australian citizenship on 26 January 1996.    The visa applicant has no relatives still residing in Cambodia.   All family members except the visa applicant now reside in Australia and are Australian citizens.

3. Sean Marb and the visa applicant were married on 1 March 1989.   Their daughter, Seak Sayron was born in 1990.

4. On 20 November 1995 the visa applicant applied to the respondent for Preferential Relative status, but on 2 June 1996 the application was rejected on the grounds that the requirement of the visa were not met because the visa applicant's spouse Sean Marb still had siblings residing in Cambodia.   Regulation  1.15, at that time, stated that an applicant must be disqualified if the applicant's spouse resided in the same country (not being Australia) as an overseas near relative.   Sean Marb's mother and  3 siblings were then living in Cambodia and consequently the visa applicant was unable to meet the "remaining relative" definition at that time.

5. On 10 September 2001, the visa applicant applied for a Subclass 115 (Remaining Relative) visa to travel to Australia.   His daughter Seak Sayron was included in the application.    In the visa application, the visa applicant stated that his present marital status was "Divorced".    In support of this claim a certificate titled "Extract of Civil Case Decision" and dated 25 September 1998 was lodged with the respondent.

6. This document purported to show that the visa applicant and Sean Marb were divorced on 25 September 1998 by decree of Judge Mom Moeun of the Banteay Meanchey Court with custody of Seak Sayron being granted to the visa applicant and access rights being granted to Sean Marb (see T24).

7. In his visa application the visa applicant disclosed that he had a second daughter, Seak Sarorn and, in his evidence before the Tribunal, he said that this child was apparently conceived as a consequence of casual acts of sexual intercourse between himself and Sean Marb after the divorce when he took Seak Sayron to see her mother.   He said that such intercourse occurred on only one or two occasions and that he was unsure whether or not he actually was the biological father of Seak Sarorn.   Whilst there is nothing inherently improbable in this story,   the continuing sexual relationship and the birth of a second child to the supposedly divorced couple takes on a particular significance in this case as the respondent is claiming that the visa applicant and his wife have never been divorced and are in fact still cohabiting in a normal marriage relationship.

8. The respondent's delegate in her decision of 7 January 2002, rejecting the current visa application on character grounds under s501 of the Migration Act 1958, made the following observation (T1, page 9):

   "There have been incidences [sic] of applicants claiming divorce in this subclass of visa as they are fully aware that living siblings in the family of the spouse of the applicant disqualifies the primary applicant from meeting the prescribed criteria for the grant of a visa."

1. The delegate also observed that experience has shown that successful visa applicants who have claimed to be divorced are, thereafter, highly likely to sponsor the supposedly divorced spouse in a fraudulent application designed to conceal the spouse's true identity.

2. Whilst there is no direct evidence of such an intent on the part of the present visa applicant, such a scenario is not difficult to envisage in the present circumstances.

3. In his visa application the visa applicant stated that his residence was "# 316 Group, O'Ambil, Sangkat, O'Ambil Serey Sophorn (Bantey Meanchey) Cambodia".    He also provided a telephone number "(0015) (855) 12 82 8695".    He also provided  a family registration book issued on 14 February 2001 recording him as an occupant of the above address.    When field officers checked this and other information on 5 and 6 December 2001, they made a number of interesting discoveries.   The following account appears in the Statutory Declaration of Panhavuth Long, a client service officer and compliance assistant employed at the Australian Embassy in Phnom Penh (T28).

   "On arriving at the vicinity of the stated address we talked to several families residing nearby.   Photographs of Mr Seak Leoub and his daughter were shown to them but they did not recognise the people in the photos.   We then visited the village chief's house but he was not at home.   We spoke to his wife and her family but they could not recognise the people in the photographs.   We were allowed by the village chief's wife to check the village family registration book.   The book was well maintained and details of the village inhabitants had been recorded correctly.    We checked through the record book thoroughly and extensively but there was no record of Mr Seak Loeub's family in the records.

   We then decided to ring the phone number provided by Mr Seak Loeub in his application.   The phone was answered by a Mr Vuth, who told us that Mr Seak Loeub  was currently living with his wife and two children at Prey Veng village, Komro commune, Thmor Pouk District, Bantey Meanchey.

   The following day (6th December 2001), we approached the Provincial Court to verify the authenticity of the claimed divorce judgment.   After a thorough check of the registration records with the chief clerk, we were advised that there was no record of the given name, date of trial, case registry number or judgment number.

   Later in the day we went back to the village chief's house.   We showed him the photos of Mr Seak Loeub and his daughter, but he did not recognise them.   We went through his family registration book with him searching the claimed house and group numbers and found that the claimed address of Mr Seak Loeub (No. 316 Group 17, Sankat O'Ambil, Serey Sophorn District, Bantey Meanchey Province) was registered and belonged to a family headed by a Mr Iv Hour.   We then went to the stated address and met with Mr Iv Hour's wife and children.   Photos of Mr Seak Loeub and his daughter were shown to them but the family did not recognise them.

   Later on the same day (6th December 2001) we went to the address provided in the divorce court judgment provided by Mr Seak Loeub.   This address was Prey Veng Village, Komro Commune, Thmor Pouk District, Bantey Meanchey.   Photos of Mr Seak Loeub, and his daughter were shown to the villagers near the address, who told us they knew Mr Seak Loeub, his daughters and his spouse very well.    They told us that Mr Seak Loeub is called Loeub and that he is married to Mrs Mab.   The villagers told us Mr Seak Loeub and Mrs Mab had two daughters and the family lived together in the village.   When we asked about their divorce, the villagers were surprised and laughed because they had never heard that this couple had been divorced.   We approached the house and met Mrs Mab, a number of her siblings and her two daughters.  When we asked about the whereabouts of Mr Seak Loeub, Mrs Mab told us Mr Seak Loeub had gone to work on his farm.  We took a photo of Mrs Mab and her two daughters."

1. In T27, a report titled "Phnom Penh Caseload Issues" dated 11 July 2002 the Minister's delegate in her role as Principal Migration Officer in Phnom Penh makes a number of important observations as to visa applications emanating from Cambodia.   The following are excerpts from that report:

   "Fraud
   Deception and fraud still permeates throughout both our temporary and permanent entry caseloads.   Visa agents and or middlemen continue to operate with impunity and their handy work is still prevalent in visitor and student caseload, as well as spouse.    Serial applicants are still common and it is not unusual to discover individuals applying for visas across a number of categories in different identities.   There are processing problems caused by the absence of documentation and the difficulty authenticating claims made by clients and sponsors.

Family Stream Migration
Processing Parents and Remaining Relatives is subject to capping and queue and long delays are experienced due to this and the low priority given to these categories. However, in the last 18 months a considerable effort has been made to clear the Remaining Relative caseload with the on-hand applications now reduce significantly to a very small manageable pipeline.   The majority of cases cleared were refused as they failed to meet remaining criteria and/or fraud and deception was involved.
…
Family Visitors
Serial applicants, fraud and deception still prevail in our visitor caseload.   Packages of documentation (including new identities) are available from 'visa agents' in Cambodia with the costs varying according to individual operators.   Some demand an up-front fee while the majority demand several thousand dollars on successfully obtaining a visa.   A variety of fraudulent and bogus documents are still being submitted by applicants purportedly visiting relatives in Australia including false identity (passport and supporting ID), bank records and business registration documents, all readily available.
Unfortunately many applicants are less than honest in their dealings with this office and are often in collusion with relatives or contacts onshore.   We often discover applicants with close family ties with Australia who have changed their identity between applications, including parents.
Documentation
The post is fully aware of the notoriety of Cambodian documentation.   There is not a single Cambodian government/official document of any description produced in Cambodia that warrants any reasonable confidence.   While this may seem like an exaggeration, the reality is that we regularly discover fraudulently obtained passports (serial applicants with multiple identities), government ID cards, family registration books, bank documents, birth, death and marriage certificates, divorces etc.   The post regularly sees serial applications by people presenting totally different identities on each occasion.    The problem stems from the fact that no records exist for any matter prior to 1979 as a result of the activities of the Khmer Rouge regime.   Since that time, all "official documents are prepared by underpaid (official pay is US$17 per month) government officers on the basis of "facts" self reported by the applicant and usually issued retrospectively.
Even where a previous record does exist of different facts, a relatively small sum of money ensures that a new document, with revised information, is issued by the official source.   As Cambodian wages are low, private enterprise employees (eg bank clerks) also supplement their income through the production of letters or passbooks attesting to fictitious bank accounts.
In this country even the school exam papers and student academic reports are commonly sold by teachers and headmasters whose salary is around USD$30 per month.
Forensic testing of documents is not useful in determining fraud as the documents themselves are usually from the genuine issuing authorities and it is the information they contain that is false.
This post routinely finds applicants with one or more identities, with ID cards, passports, birth certificates etc in each name.   Hence, person substitution and the assumption of false ID and false family composition, is probably a factor in well over 50% of our preferential family and spouse caseloads (this has not been overestimated).
Applicants requiring a police clearance certificate apply to the local Sangkat (District) office and usually obtain the clearance in a day.   The cost of such a clearance varies considerably depending on the unofficial fees levied by each Sangkat officer.
There is no central registry of births, deaths and marriages in Cambodia.  The Post commonly sees persons granted visitor visas on the basis of being married and hence having an incentive to return to Cambodia, entering into a marriage onshore and then providing divorce or death certificates for their former spouse.
The most complete source of family details records is in fact held by our Department.   This is the combination of selection documents from the refugee camps in the 1980s and the family detail records submitted in the heyday of special Assistance Category (SAC) 214 visa applications in 1994/95.   While many of the claimed family compositions on these documents are incomplete or false, they do provide a basis for comparison of later claims of deceased or non-existent siblings, spouses etc provided in applications for 309, 300 and other preferential family visas."

These startling allegations cannot be regarded as conclusive in any individual case, but they do provide a valuable background for assessing the evidentiary worth of apparently authentic documentation of a kind which would normally be accepted almost without question in an Australian court of law.

1. When interviewed by a migration case officer on 7 January 2002, the visa applicant at first stated that his current residential address was "House 317, Street 16, Khum O'Ambil, Srok Srey Sophorn, Banteay, Meanchey Province."   He said he had been living there for four years.   Subsequently during the same interview, he said "I live with Kong Vuth at Psar Thmey".   He said his address was "Phum Psar Thmey, Khum Susamphon, Srok Serey Sophorn, Banteay Meanchey Province" and that he had been living there for two and half years.   Later the same day, the visa applicant was interviewed again.    He then blamed Kong Vuth for providing the false address contained in his visa application.   He also agreed the family book was false, but maintained the divorce decree was valid.

2. During the Tribunal hearing, the visa applicant gave oral evidence by telephone from Cambodia.   He said he lived at the address given in the visa application.    He strenuously maintained that he was divorced.   However, as shown by the answers he gave to the migration officer at the interview in January 2002, he was unable to provide any reasonable or satisfactory explanations for the observations and findings made by Mr Long and his associate during their field trip in December 2001.

3. Evidence was also given during the Tribunal hearing by Soka Sokorn.   This lady said she had been a Court Registrar for 12 years and had been responsible for recording details of the divorce decree pronounced in respect of the visa applicant's marriage.   She said that the details recorded in the "Extract of Civil Case Decision" of 25 September 1998 were true.   She said that she copied the details from the Court Register and that she had typed out the original order and decree.   This witness spoke to the Tribunal on a mobile phone.   She said that the only landline to the Court was to the office of the President and of the Court.    In her written statement to the Tribunal, Soka Sokorn says that the judge who purportedly made the divorce decree is now dead.    The witness said that there is a Registrar of the court who is senior to her.   Soka Sokorn said that she was on duty in December 2001.   She was unable to explain why Mr Long and his companion were unable to find details of the divorce when they made their search of the records with a court official in December 2001.  Soka Sohorn was not an obviously dishonest witness and what she said in evidence was consistent with the "Extract" setting out the divorce decree and also with the visa applicant's own evidence.    She said she was giving evidence from the court, but there was no way of verifying this.   Were it not for the evidence of Mr Long as to his fruitless search of the records with a court official in December 2001, the disturbing allegations of corrupt practices contained in T27 (see Paragraph 11 above), and the direct evidence of cohabitation (albeit mainly of a hearsay nature) provided to Mr Long and his associate, I may well have been persuaded to find that the visa applicant and his wife had in fact been divorced as claimed.   However, the factors mentioned above cause me a great deal of hesitation on this very important issue.   Indeed after reflection and weighing the evidence carefully, I find on the balance of probability that the visa applicant and his wife have never been divorced and that the documentary evidence and his testimony to the contrary are false.

4. Evidence for the visa applicant was also given by Pang Heab, a married woman aged 55 years.    She made a declaration which was taken into evidence as part of Exhibit A1.   She also gave oral evidence by phone from Cambodia.   She says that she lives at House No 16, Group 17, O'Ambil Village Shire Serie Sophorn District, Banteay Meanchey Province.   This address varies in spelling and minor detail from that provided by the visa applicant in his visa application, but it is obviously the same address.    Heab Pang said in her oral evidence that the visa applicant and his daughter Seak Seyron have been living in her household at that address for 4 years.   However in her declaration (part of Exhibit A1) she says (inter alia) "Loeub Seak was a person asking my address for a convenient access in contacting with the Australian Embassy".   This seems to a proposition consistent with the explanation the visa applicant gave to the interviewing officer in January as to why he gave an address at which he was not living in the application form.

5. Heab Pang said that when the investigating officers called at her home to check on the visa applicant's residence, she was not at home, and that visitors who were staying there with her over a period of about 10 days did not know the visa applicant and so could not identify him or give information about him to the investigation officials.   However she agreed that Seak Seyron was living in the house at the time and was quite unable to explain why her visitors would have been unable to recognise Seak Seyron's photo when questioned by the officers.   Altogether I found this witness' evidence  unconvincing and highly suspicious.    The declaration of Aim Yai, also contained in Exhibit A1 does little to advance the matter.

6. In my opinion the visa applicant has falsely claimed to be divorced and has used false documents to establish his claim for a visa.   He has given false information as to his place of residence in his visa application.   He made a strange remark during his evidence which tended to show that he failed to appreciate the seriousness of this conduct.   He said "Cambodian society is not the same as yours.    A lot of people use lies and false information".   Nonetheless his conduct is of the utmost gravity and quite clearly leads to the conclusion that he has failed to pass the character test prescribed by the legislation.   In reaching this conclusion I have accepted the evidence of Mr Long, who despite a regrettable tendency to almost unbridled loquacity impressed me as a witness of the truth.

1. Mindful of the Minister's Direction No 21 relating to matters of this kind, I have applied my mind to the question whether or not a discretion should be exercised  in the visa applicant's favour, notwithstanding his failure to pass the character test.   The relevant principles are well known and have been referred to in many of my recent decision.   There is no need to repeat them in detail.   It is well established that applicants using false information and/or providing false documents to assist their case should not normally be rewarded for their deceit and mendacity by achieving their goal of entry into Australia.

2. In my opinion the Australian community would expect refusal of a visa in such a case.   I am also of opinion that an adverse result would be appropriate to protect the Australian community and to serve as a deterrent to future applicants who may be minded to try deception to improve their prospects of entry.

3. The visa applicant's relatives in Australia are plainly very eager for him to join them here.   He too, seems to be anxious to come to this country.   However I cannot regard the frustration of these desires as causing significant hardship to the family or its individual members.   

4. I am not persuaded that my discretion should be exercised in the visa applicant's favour.   The decision under review is affirmed.

I certify that the 22  preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President) 

Signed:   K L Miller (Administrative Assistant)

Date/s of Hearing   2 September 2002
Date of Decision   4 October 2002
Counsel for the Applicant        

Solicitor for the Applicant  Applicant represented by her daughter, Lath Seak

Counsel for the Respondent    Mr T Boyd
Solicitor for the Respondent    Blake Dawson Waldron