Ly and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 435

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 435

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/827

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LY MUY HENG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

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

Date16 April 2003

PlaceMelbourne

Decision The decision under review is affirmed.

[Sgd Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration - spouse visa application - character test - false and misleading statements - discretion.

Migration Act 1958 – s501

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 458 Chau and Minister for Immigration and Multicultural Affairs (2001) AATA 485

REASONS FOR DECISION

16 April 2003 The Hon C R Wright QC., (Deputy President)  

The Application

1. The review applicant has applied to review a decision of the Minister’s delegate on 19 June 2002, refusing to grant a subclass 309 spouse visa to her husband, Chea Seng, on the ground that he did not pass the character test within the meaning of s501 of the Migration Act 1958 (“the Act”).

2.      The Tribunal hearing took place in Melbourne on 2 April 2003.   The applicants were represented by Mr G Hughan and the respondent was represented by Mr M Brereton.   Oral evidence was given by both applicants assisted by an interpreter.   The visa applicant’s evidence was taken by telephone link to Cambodia.

3.      The following documentary evidence was also received:

(a)      Exhibit “A”     -          Statement of Ly Muy Heng

(b)Exhibit ”B”     -            Bundle of correspondence between the applicant with English translations.

(c)Exhibit “C”     -            Section 37 (“T”) documents

(d)Exhibit “D”     -            Statement of Chea Seng

(e)Exhibit “E”     -            Bundle of 7 Statutory Declarations as to character of the applicants.

(f)Exhibit “F”     -            Two Statutory Declarations as to character of the applicants.

4.      The review applicant was born on 12 April 1958 in Cambodia.   The visa applicant was born on 15 May 1969 in Cambodia.   The review applicant came to Australia in 1990 and was granted Australian citizenship in 1996.

5.      On 21 September 1994 the visa applicant lodged an application for a subclass 676 Visitor (Short Stay) visa to visit Australia.   Within that application he declared his father as CHEA Kim Peng and his mother as SOK Keng Chea.   He also declared that he had four siblings, he named each of them.   The visa application was refused on the same day.

6.      On 16 July 2001 the visa applicant and review applicant lodged an application for the current visa.   In this application the visa applicant declared his father as KIM Poeng and his mother as KENG Chea, and declared that he had only one sibling, his eldest sister.   He also declared that he had never been refused a visa to visit Australia.

Character Issues

7.      On 22 May 2002, the visa applicant was interviewed by departmental officers in Cambodia.  At first he denied that he had ever applied for a visa to visit Australia.   Later during the interview he said that his niece had invited him to visit Australia and had completed his 1994 visa application.   He said he could not remember his niece’s name.   During the course of his evidence before the Tribunal he said that the 1994 application had been completed by his sister.   When confronted with this inconsistency he said: “My niece and my elder sister organized it” (the application) “together”.

8.      He also said that his niece’s name was NGET Savary.   He acknowledged that at the interview he had said he could not remember her name.   He gave no explanation for this discrepancy, but then volunteered that his “niece” and he were not related.   He said that she was the daughter of a female friend of his mother’s.

9.      He was also asked about Su Song Lim, the person referred to in his 1994 visa application as the person whom he wished to visit in Australia.   He admitted that he did not know Su Song Lim.   Asked why this person was named in his application, he said:  “Maybe that was the answer then – all arranged by my sister.   I think that must be what my sister put in the form”.   He repeated: “My sister completed the application”.

10.     As a result of these questions and answers and the witnesses’ apparent evasiveness in answering other questions, I formed the opinion that he was generally unreliable and that his explanations as to inaccuracies and other documentary errors relied on by the respondent as demonstrating a willingness on his part to give false information, could not be taken at face value.

11.     This is doubly unfortunate because not only does it present difficulties to me in making positive findings of fact, it also impinges adversely upon the visa applicant’s ability to satisfy me that he passes the character test.

12.     It was contended by counsel for the applicants that the visa applicant’s failure to name 3 of his siblings in his spouse visa application could not be regarded as a serious falsehood on his part because no relevance to any migration issue arose from this oversight or deception.    In fact this would appear to be correct.   The respondent does not allege that there was any significance in this issue other than its indicating that the visa applicant was unwilling to provide truthful information.

13.     This would not always be the case however.   Disclosure of siblings with criminal records or associations could well put the Department on enquiry as to similar involvement by the applicant.   It is not for the visa applicant to decide what information he will or will not give in answer to questions asked on an official form.

14.     In his statement (Exhibit “D”) the visa applicant said this:

“On 21 September 1994 I made application for a tourist visa to come to Australia.  I was intending to visit a friend.   My sister SOK Leang had arranged for the application form to be completed for me because I cannot read or write English.   The information about my family that is contained in that application form is true.   I do in fact have three sisters and a brother and their names are as is set out in the information included in my 1994 visitor visa application.

My parents are now both dead.   My father’s name was KIM Poeng but, because this name identified him as being Chinese, during the Pol Pot years he began to call himself CHEA Kim Peng.   The Khmer Rouge hated the Chinese and killed many people just because they were of Chinese origin.   My mother’s name was KENG Chea.   Her name as set out in the information given in the visitor visa application form was SOK Keng Chea.   This is a mistake made by in [sic] completing the form, which I think comes from my sister’s name.   I did not intend to mislead the authorities in making this application.

My visitor visa application was refused just a few days after it was filed.   After that time I did not think about that application form again until I was asked about it during my interview at the Department on 22 May 2002.

About three years ago I was involved in business with my wife at that time, KUY Kim Hour, my sisters SOK Lon and CHEA Sunary and my brother CHEA Huot.    We sold used cars.  The business was not successful and as a result I had an argument with my wife.   My two sisters Lon and Sunary and my brother took my wife’s side of the argument and claimed that I owed them money.   As a result of this I argued with these three siblings and have not spoken to any of them since that time.   As far as I am concerned they are no longer my family.   I have nothing to do with them any more.

I do not have a family card for my parents’ family.  For many years I have been registered only as part of my sister, Leang’s family.   So when it came to making the application for my spouse visa we did not include the information about my other siblings.   I now realise that it was wrong not to include this information, but I did not intend to deceive the authorities when making this application to improve my chances of getting a spouse visa.

Whether the visa applicant foresaw the possibility of improving his chances of securing a spouse visa or not, I think that he did intend to deceive the authorities.   On balance however, I think this deceit was generated by family pride rather than any sinister motivation.

15.     The visa applicant told me that he has been a police officer for 13 years and that he will soon be “Number one rank”.   I am not quite sure what this means and the visa applicant was unable to be more specific as to his standing in the police hierarchy.   He did say that he has 2 or 3 other people who are subordinate to him.  He said that he deeply regretted what he had done in providing untrue information and added, “It will not happen again”.   In Exhibit “D” he said:

“I believe that I am a good person and have given the Immigration Department many references that attest to my good character.   I have never been charged with a criminal offence and in fact I have been a policeman for many years..   I think that it is important to obey the law and I have spent my career trying to uphold Cambodia’s laws.   Now that I realise what I have done is considered to be a serious breach of Australia’s laws I am truly sorry.”

In an earlier statement on 18.6.02 (T14, page 94 Exhibit “C”) the visa applicant said:

“I grew up in the country where telling lies are part of the society worm [sic].  This was largely the product of the Pol Pot era, when people had to learn how to lie to survive.   The authorities at that time would ask people what their occupation was prior to Pol Pot’s takeover.   If for example you said you had been a public servant, then you would be killed instantly.   However, if you said you were a taxi driver, you wouldn’t be killed.   Amidst the terror, people quickly learned to say whatever they needed to say to stay alive.

After the Pol Pot regime was overthrown, the Vietnamese Army controlled Cambodia.   During this time, it was the payment of bribes to the authorities that was required.

These legacies have remained a fundamental part of life in Cambodia and its society. One consequence is that people do not understand that it is regarded seriously wrong to tell untruths on official documents, such as on forms to apply to migrate to Australia.   To say whatever needs to be said to authorities in order to get the outcome you want, are not viewed as wrong in Cambodia (as it is in Australia) but are rather a common and socially acceptable practice.

I came to realize that providing false information to immigration officials is regarded as a very serious demeanour in Australia when receiving your notice of intervention to refuse visa under subsection 501(1) of the migration act 1958.

I am truly sorry about giving false information to the immigration department in relation to the visitor and spouse visa application.   I realize now that I was foolish but I do not believe that I am a bad person.   I do not have a criminal record nor have I done anything to harm others.”

16.     Whilst this material reminds us of the horrors of the Pol Pot era and the crumbling social fabric which was its legacy, it does not provide an excuse for deliberate falsehoods which the visa applicant all but acknowledges in these 5 paragraphs.

17.     Mr Hughan submitted that his client passes the character test but I am unable to agree.   The provision of false information in respect of migration matters is a serious breach of good conduct.   The Minister’s Direction No 21 (see T6 page 40 et seq Exhibit “C” paragraph 1.9 makes it clear that, in the absence of countervailing factors, decision-makers should consider the making of false or misleading statements in connection with an application for the grant of a visa to constitute a failure to pass the character test.   Such countervailing factors as exist in this case do not cause me to shrink from the conclusion suggested by this direction.   Rather than the visa applicant’s status as a policeman minimising his misdeeds, this I think tends to accentuate them.

Discretionary Issues

18.     I turn therefore to consider the exercise of my residual discretion, the ministerial guidelines for which are also contained in T6.    At the outset I should make it clear that I accept that the applicants are partners in a genuine and loving marriage.   There is a fairly large age difference between them (he is nearly 34 years of age, she is 45).   They have both been married previously.   Much of the documentary evidence (Exhibits “B”, “E” and “F”) has been directed to establishing the bona fide nature of their relationship.   However it has never really been in dispute and, particularly having heard and observed the review applicant giving evidence, I have no reason to doubt that theirs is an enduring union.

19.     In Exhibit “A” the review applicant described her background.   She said:

“I was born in Campong Thom in Cambodia on 12 April 1958.   I was the first-born child of my parents and I have three younger brothers and a younger sister.   Both of my parents are dead – my mother died of starvation during the time of Pol Pot regime and my father died after a long illness in 2000.   Two of my brothers and my sister still live in Cambodia.   The oldest brother lives in Melbourne in the suburb of Thomastown.

I have had a very hard life.   I was just 17 years old when Pol Pot took power and at that time I was living in Battambang province with my family.   My parents arranged a marriage for me to HENG Heang.   We were married, although there was no official recognition of marriages at the time.   I lived with Heang for about three years.   I gave birth to our son LY Sok Pheang on 12 October 1978.   About two moths after our son was born, the Pol Pot government executed Heang.

Then in about 1986 I began to live with another man, HONG Leng, in Battambang.  We opened a small pharmacy together.   However this also ended in tragedy in 1990 when the government officials accused us of selling medicines to the Khmer Rouge and arrested and killed my husband.

For this reason I feared for my life and my son’s and decided to leave Cambodia.  We travelled to Australia in a small boat in a journey that took 26 days.   The boat nearly sank and I was seasick on the journey, but we both survived.   We arrived in Australia without any official documents and were placed into `administrative detention’, first at Springvale, then later in Villawood.

While I was in detention I met my third husband Daun Sar.   We got married in 1993 and near the end of that year I left the detention centre and came to live with him in Melbourne.   However after I was released from detention and went to live with Sar I found that he was very cruel and violent towards me and I had to leave him a short time later.   We were divorced on 30 August 1995.   Once again I was alone.

In July 1999 I returned to Cambodia to see my father who was very ill.   Before I travelled my friend NGETH Savry asked me to deliver a letter and present to her `uncle’ CHEA Seng.   Although Seng is not really her uncle, she calls him uncle because his parents looked after her mother when she was young.   On 5 August 1999 I telephone Seng and told him that I had a letter and gift for him from Savy.   He then visited at my cousin’s house, where I was staying and we spoke for about 20 minutes.   He seemed to be a very friendly and sensible man.

A week before I returned to Australia Seng came back again to my cousin’s house and gave me a letter to give to Savry.   On this occasion he stayed longer and we spoke again.   He made a very good impression on me during these two visits.

After I returned to Australia Savry told me that Seng had asked her about me and whether I liked him. We had several conversations like this.   Then in about March 2000 Seng telephoned me directly for the first time.   After this he would call me about once each month.

In 2001 Seng asked me to return to Cambodia, so that we could decide if we wished to marry.   In April 2001 I returned to Cambodia and stayed with him at his sister’s home.   I found that I liked him very much and so decided to marry him.

We had the wedding at his home and then the reception at a restaurant nearby on 25 May 2001.   About 150 guests attended the celebration.

After the wedding I stayed in Cambodia where we filed the application for a spouse visa for Seng.   As neither my husband nor I can read or write English, my husband’s niece SOK Naly filled out the application forms and we signed them.

…

I remained in Cambodia with my husband until the end of July 2001.   This was a very happy time for us both.   I then returned to Melbourne, but kept in touch with Seng by the telephone and letter after that time.

Also I travelled back to Cambodia twice this year to be with Seng and have made plans to return there to be with him again in January 2003.

I cannot see any dishonest reason for Seng to have changed the family details in the two application forms.   There was nothing for him to gain by not including the information about his other sisters and his brother in his spouse visa application.   I believe that he just does not recognise them as being his family any longer.

…

If my husband continues to be refused a visa on character grounds, I will be put in an extremely difficult position.   I wish to stay close to my son who is living and studying in Melbourne.  My parents are both deceased and so are my husband’s parents.  Accordingly, we have a very great need for each other and have been very happy together.   If Seng cannot come to Australia I may have to live with him in Cambodia.  I am torn between wanting to be with my husband and the need to continue to be with my son, who has no-one else but me.   My son and I have made Australia our home.   If I have to return to Cambodia this would make me very depressed because I would be apart from my son and all of our lives would be very much harder.”

This evidence is entirely consistent with the review applicant’s oral evidence.   I have no reason to disbelieve anything that she told me as fact based upon her own experiences and perceptions.   Her opinion as to her husband’s veracity is another matter however.   Her loyalty to him does her credit, but does not change the views I have already expressed as to his credibility.

20.     The review applicant’s son Ly Sok Pheang is now aged 24 years.   That she and her son have had a hard life is beyond question.   However he is now a mature adult.   His mother has returned to Cambodia to visit the visa applicant on 4 occasions since their marriage.  Ly Sok Pheang has not accompanied her.   Whilst I have no doubt that the maternal and filial bonds are strong, there is no reason to suppose that there is strong mutual dependence financially or emotionally.  He is at an age when he may be expected to make his own way in the world, marrying and settling down with his own family.   There is no reason to suppose that he would have difficulty in visiting his mother if she chose to make her home with the visa applicant in Cambodia.   There was a dearth of evidence upon his educational qualifications and employment prospects.   I am confident that with Mr Hughan representing the applicants we would have heard about any dependency issues which may constitute hardship for mother or son if they were to separate.   The review applicant did say, “If I go back to Cambodia he” (my son) “will not come with me because he needs to go to school”.  I would be surprised if she meant primary or secondary school.   Perhaps she was referring to University or a TAFE College.  Whatever the true situation, the evidence does not satisfy me that a parting between them will constitute a substantial hardship for either.

21.     The review applicant has employment as a seasonal worker picking and packing strawberries.   I was not told of her earning capacity in this job, but I doubt that it would be substantial.  Whether her income is supplemented by unemployment or other welfare benefits during the year was not explored in evidence.   At all events her husband has secure employment as a police officer in Cambodia.   There is no reason to think that he would be unable to support his wife if she returned to her native country to live with him.   Neither applicant is proficient in the English language.   Both speak the Khmer language.   There is no reason to think that the review applicant could not successfully relocate to live in Cambodia.   In some respects I regret coming to these conclusions as the review applicant appeared a very frank and honest witness.   As already mentioned she has had a very difficult life.   Plainly she likes living in Australia.   Unfortunately I feel unable to regard these facts as displacing the conclusion to which I feel driven by an analysis of the relevant facts.

22.     Bearing in mind the Minister’s primary considerations in Direction 21 and views previously expressed in AAT and Federal Court decisions on migration issues of this kind, I think it fair to say that the visa applicant’s conduct in making false statements was reprehensible, but not such as to require “protection” of the Australian community in the sense that that word is used in normal parlance.   However, the Direction gives it a broader connotation..   It covers potential repetition of false statements in respect of future dealings with Government and the need to deter like minded applicants who may choose to lie to migration officials.   I expressed my views about deterrence in Chau and Minister for Immigration and Multicultural Affairs (2001) AATA 485 and there is no need to repeat them here. I think that general deterrence in cases such as this is an important objective.

23.     I am also of the view that the Australian community would expect refusal of a visa in this case.  I agree with the views expressed by Deputy President Block in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 458 when discussing this consideration at paragraph 7(m) of his decision. He said:

“ Clause 2.3(b) (read with 2.12) is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. If told only and concisely that a person incarcerated for armed robbery was seeking to come to live in Australia, there might well be a general view that this should not be allowed. On one facile view, these are the facts in this case. They entirely ignore the fact that the event happened nearly 20 years ago, since which time there has been a complete rehabilitation transforming a young drug-addicted person into a responsible family man. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”

I think a “middle of the road” reasonable member of the Australian community with a comprehensive knowledge of the evidence would not regard it as inhumane to refuse the visa applicant’s application.   No doubt there are many among us who have known only the Australian way of life who would quail at the prospect of living in such circumstances as we may imagine to exist there.   However Pol Pot and his henchmen are no more, and the visa applicant lives and works there.   He has lived and worked nowhere else or at least there is certainly no evidence that he has done so.   The review applicant, despite her very sad and difficult past experiences in Cambodia lived there continuously for the first 30 years or so of her life, and she has been back on several occasions both before and after her marriage.   I have already dealt with her relationship with her son.

24.     In my opinion my discretion should not be exercised in the visa applicant’s favour.   The decision under review will be affirmed.

I certify that the 35 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 April 2003
Date of Decision  16 April 2003
Counsel for the Applicant         Mr G Hughan
Solicitor for the Applicant           
Counsel for the Respondent     Mr M Brereton
Solicitor for the Respondent      Australain Government Solicitor