Ngo and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 213
•6 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 213
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1047
GENERAL ADMINISTRATIVE DIVISION
Re: CAM HA NGO
Applicant
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS
AFFAIRS
Respondent
DECISION
Tribunal: Deputy President J. Block
Date:6 March 2003
Place:Melbourne
Decision:The decision under review is affirmed.
(sgd) J. Block
Deputy President
MIGRATION – spouse visa – character test – false and misleading statements and conduct – not of good character – whether discretion should be exercised in applicant’s favour – primary considerations – protection of Australian community – seriousness and nature of conduct – risk of recidivism – general deterrence – expectations of Australian community – other considerations
Migration Act 1958
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Uch and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1119
Re Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485
REASONS FOR DECISION
6 March 2003 Deputy President J. Block
PART A - INTRODUCTION
1. The decision under review is the refusal dated 2 July 2001, by a delegate of the Minister for Immigration and Multicultural Affairs (as he then was) of a Subclass 309 (Spouse Visa) by IN Vannary (the visa applicant); that application was sponsored by the applicant who is her husband.
2(a) The applicant was represented by Mr R. Purcell, of Katis Purcell Anthony, solicitors, while the respondent was represented by Mr P. Cadman, an articled clerk in the service of Blake Dawson Waldron, solicitors.
(b) The Tribunal had before it the T documents lodged in accordance with s.37 of the Administrative Appeals Tribunal Act1975 (the T documents), together with exhibits as follows:
Additional letter of Joan James dated 12 March 2002 Exhibit A1
Statement of Sithorn Chin dated 15 February 2002 Exhibit A2
Statement of Keth Taing dated 15 February 2002 Exhibit A3
Statement of Tan Chhoa Uong dated 15 February 2002 Exhibit A4
Statement of Huy Nay Te dated 15 February 2002 Exhibit A5
Statement of Duke Savkov dated 15 February 2002 Exhibit A6
Statement of Katie Phon dated 21 February 2002 Exhibit A7
Statement of Hun Ly Oeur dated 17 February 2002 Exhibit A8
Statement of Khai Ngoun Heng, chief of Potouch village,
Kampong Luong District, Kandal province — two Certificatesdated 15 and 17 February 2002 Exhibit A9
Statement of the applicant – Cambodia Ha Ngo - dated 15 February 2002
Exhibit A10
Statement of IN Vannary dated 15 February 2002 Exhibit R1
(c) Mr Cadman agreed to my acceptance, in respect of the exhibits tendered by Mr Purcell, of a number of statements of persons who were potential witnesses, on the basis that he would not require the makers of those statements to attend for cross‑examination, but on the express understanding that he did so subject to two reservations; in the first place, he noted that his client did not admit that the visa applicant had ever been married to her first husband (as defined hereafter); in the second place, Mr Cadman noted that his client was prepared to accept the contents of the certificates which comprise exhibit A10 without admitting that the visa applicant was the aunt of the two children referred to in those certificates.
(d) In relation to exhibit A10, which is a statement by the applicant, Mr Purcell asked me to note two errors: in the first place and as regards clause 3, the correct address should have read 26 Osborne Avenue, Springvale and not 28 Osborne Avenue, Springvale, and in the second place, the reference to birth certificates for the children based on information provided by her aunt should correctly have referred to information provided by her mother.
(e) This matter originally came before the Tribunal on 25 June 2002 and was heard on that day and thereafter on 26 June 2002; it was then adjourned and listed later in 2002 when, unfortunately, it could not be heard in consequence of the fact that Mr Cadman was ill at the relevant time; the hearings were completed on 3 February 2003. Progress was slow, in part because of the need for interpreters in both the Vietnamese and Khmer languages. It must be said that all of the interpreters in the Khmer language (and there were three in all) did not find it easy to translate the evidence of the visa applicant. This arose in part because she tended to give very lengthy answers, and found it difficult to accede to repeated requests to give answers in parts, and so as to allow the interpreter to translate that part before proceeding to the next part or parts. In the result, the interpreter found it necessary on many occasions to ask for the question to be repeated; for that matter, the visa applicant often made similar requests. It must also be said that the visa applicant's answers were often, in reality, not answers to the questions asked or were otherwise evasive. The standard of service by the interpreters in the Khmer language was distinctly variable.
(f) In order to set the scene, I intend to reproduce part of the content of certain of the documents which were in evidence before me or which were contained in the Statements of Facts and Contentions by the parties. The delegate's decision (T2) includes a helpful chronology as part of the decision record. That chronology appears at T page 5 and T page 6, under the heading Previous visits to Australia/immigration history, which reads as follows:
Previously lodged an application for a subclass 456 temporary business visa on 13/03/96 at the Australian Embassy in Phnom Penh. The visa was granted on 14/03/96.
On 21/03/96 the applicant arrived in Australia at Melbourne airport.
On 13/06/96 the applicant lodged an application for and was granted a further subclass 456 temporary business visa onshore.
On 10/09/96 the applicant departed Australia through Melbourne airport and re‑entered Australia on 15/10/96.
On 14/01/97 the applicant departed Australia through Melbourne airport and re‑entered Australia 23/01/97.
On 21/04/97 the applicant lodged an application for and was granted a further subclass 456 temporary business visa onshore.
On 17/07/97 the applicant lodged an application for and was granted a subclass 676 tourist visa onshore.
On 17/10/97 the applicant lodged an application for a protection visa and a WA-010 bridging visa was granted on the basis of the undecided protection visa application. On 31/10/97 the protection visa application was refused.
On 26/11/97 the applicant lodged an application for review of the decision to refuse her application for a protection visa with the Refugee Review Tribunal [RRT]. On 03/05/99 the decision to refuse was affirmed by the RRT.
On 11/05/99 the applicant lodged an application for and was granted a WB-020 bridging visa to enable her to depart Australia.
On 13/05/99 the applicant departed Australia from Melbourne airport and this subclass 309 spouse visa was lodged at the Australian Consulate General, Auckland on 21/05/99. The applicant re-entered Australia on 24/05/99.
On 25/05/99 the applicant joined in a class action and filed litigation against the Minister with the Federal Court.
On 29/05/99 the applicant was granted a WA-010 bridging visa.
On 19/07/00 the applicant withdrew her litigation filed against the Minister in the Federal Court.
On 16/08/00 the applicant became unlawful. On 05/09/00 the applicant was granted a WE-050 bridging visa.
On 21/08/00 the applicant sought Ministerial Intervention. This was not considered by the Minister in December 2000 and a further WE-050 bridging visa was granted on 6/12/2000 giving the applicant until 14/12/2001 to depart Australia.
On 13/02/01 the applicant applied for and was granted a further WE-050 bridging visa giving her until 6/3/2001 to depart Australia.
On 05/03/01 the applicant applied for and was granted a further WE-050 bridging visa to enable her to depart the Australia voluntarily by 7/4/2001.
On 08/04/01 the applicant departed Australia and returned to Cambodia.
Previous visa cancellations (including section 20 determinations and entry permit terminations before 1 September 1994): N/A
3(a) The delegate's decision (T2) contains, in addition, in Part C, the respondent's assessment in respect of its refusal of the visa applied for. Part C (T page 8 to T page 12) of the delegate's decisions reads as follows:
…
PART C: ASSESSMENT FOR REFUSALS
BACKGROUND
1.On 13/03/96 the applicant lodged an application for a subclass 456 temporary business visa at the Australian Embassy in Phnom Penh. The visa was granted 14/03/96. This application was part of a number of applications that were under investigation as it was apparent they had been lodged with false and misleading information and fraudulent documentation in order to obtain a visa.
2.Whilst in Australia, the applicant was granted two extensions to her subclass 456 temporary business visa on 13/06/96 and 21/04/97. Both applications contained false declarations regarding her business activities and purpose of visit. During this time she made two trips, departing Australia on 10/09/96 and returning 15/10/96 and departing Australia on 14/01/97 and returning 23/01/97.
3.On 17/07/97 Ms IN applied for and was granted a subclass 676 visitor visa. This application contained false and misleading statements and was supported by false documents.
4.On 10/10/97 Ms IN applied for a protection visa containing false and misleading statements and based on spurious claims. She claimed she was at risk because her previous husband CHHUN Chantou had been a FUNCIPEC soldier killed during the coup (07/07/97). She also claimed that they had two children from this relationship. This application was subsequently refused on 31/10/97. She applied to the RRT for review on 26/11/97 and the decision was upheld on 03/05/99.
5.On 20/04/99 Ms IN married the sponsor Mr NGO Cam Ha onshore.
6.On 11/05/99 Ms IN was granted a WB-020 bridging visa to enable her to depart Australia. She departed Australia on 13/05/99 and this subclass 309 spouse visa was lodged at the Australian Consulate General, Auckland on 21/05/99. Ms IN re‑entered Australia on 24/05/99. This application contained false and misleading statements and fraudulent documents supporting these claims. Ms IN claimed to have previously been married to CHHUN Chantou with the relationship ending with his death on 07/07/97 during fighting in the July 1997 "coup". She also claimed to have two children from this relationship - CHHUN Narong (m) 09/05/90 and CHHUN Meta (f) 04/08/92.
7.On 25/05/99 Ms IN filed litigation against the Minister with the Federal Court which was withdrawn on 19/07/00. Costs were awarded to the Minister and the applicant was ordered to pay $2,500 to the Department. During this time Ms IN was granted a WA-010 bridging visa which expired on 16/08/00.
8.Ms IN became unlawful on 16/08/00 and remained unlawful until her departure from Australia on 08/04/01.
9.During this time Ms IN sought Ministerial Intervention of the refusal of her protection application on 21/08/00 which was not considered by the Minister in December 2000.
10.The applicant has an outstanding debt to the Commonwealth of A$3,500, including A$1,000 for the RRT review fee and A$2,500 for the Minister's litigation costs (see folios 90 & 113).
11.On 11/06/01 this office received a letter from Ms IN changing the information contained in her spouse application form (folio 100). In the letter Ms IN maintained her claim to have been previously married to CHHUN Chantou, but confessed that the children CHHUN Narong and CHHUN Meta are not her or CHHUN Chantou's natural children. She claims they are the children of her deceased sister-in-law and that she and CHHUN Chantou adopted them.
12.On 07/02/01 officers from this Embassy conducted a field check in the vicinity of the applicant's house. Neighbours in the community did not recognise Ms IN as having previously been married or having children. Ms IN was known in the community as having lived alone with her mother. The applicant's mother was questioned as to the whereabouts of the children whilst the applicant was in Australia and she said they lived with the sister of the applicant's deceased husband. Of the photos on display in the house, none were seen to include the claimed children.
13.As part of the processing of Ms IN's current spouse application she was interviewed at the Embassy in Phnom Penh on 19/06/01.
14.Prior to this interview Ms IN was given an information sheet on the requirement to be of good character in both Khmer and English to read. At the commencement of the interview the good character requirement was explained in regard to the provision of false and misleading information. The applicant stated she understood this requirement and that the consequences for the provision of false or misleading information would be the denial of her application. She signed the character information sheet (folio 101).
15.At interview the applicant deliberately continued to mislead an officer and provided false information regarding her claimed previous marriage to CHHUN Chantou.
16.When presented with the adverse information obtained during the field check on 07/02/01 that Ms IN was not recognised in the community as having previously been married or having children, she denied this finding. She maintained her claim to a previous marriage. Ms IN did not submit any evidence, photographic or otherwise, other than a death certificate (folio 98 - This type of document is notoriously unreliable in Cambodia and is obtained on an as reported basis by the purchaser) to substantiate her claim that she had previously been married. She claimed that at the time of the wedding her parents were too poor for a proper wedding or photographs and that during the course of her claimed 10 year marriage her husband was often away with his duties as a soldier and there were no opportunities for photographs. This explanation was found to be unconvincing and lacked any credibility.
17.At interview Ms IN confessed that the children CHHUN Narong and CHHUN Meta claimed in her past and present visa applications as her children from the relationship with CHHUN Chantou were not her natural children. The applicant claimed at interview, and in the letter received 11/06/01, that she adopted (fostered?) the children after her sister-in-law passed away. Ms IN was unable to give a date for their adoption or an adequate explanation regarding their care given that she left for Australia in 1996 and that she claimed her husband was always away with his duties as a soldier. When questioned about their current whereabouts, Ms IN said she was unable to locate them upon her return to Cambodia in April 2001. She claimed that they were residing with her ex‑husband's aunt, which contradicts the information received from the applicant's mother at the field check on 07/02/01.
18.At interview Ms IN admitted that the children's birth certificates (folios 49-50) lodged with her spouse application contained false and misleading information (fraudulent in content) claiming her as the mother and CHHUN Chantou as the father.
19.At interview Ms IN admitted that the family book (ban krue-saa) (folios 53-55) lodged with her spouse application contained false and misleading information regarding family composition with the children listed as her own. The family book also contained false and misleading information in relation to the birthday (04/08/92) and registration date (19/07/92) of CHHUN Meta. As a person cannot be registered in the family book before birth, this is further evidence of the fraudulent nature of this document lodged in support of Ms IN's spouse visa application.
20.The applicant admitted at interview that her subclass 456 temporary business visa granted 13/03/96 was arranged by an agent for a fee and that it contained false and misleading information regarding purpose of visit. She admitted that she thought she was applying for a tourist visa and had no intention to pursue business interests in Australia.
21.The applicant admitted at interview that the sole purpose of applying for a protection visa was to remain in Australia. After her marriage onshore Ms IN admitted that the sole purpose of pursuing the protection visa was to remain in Australia with her spouse.
22.The applicant attended a further interview on 20106/01 where she was notified of intention to refuse this visa application under Section 501 character provisions. The applicant again denied that she had provided false information in relation to her previous husband CHHUN Chantou. The applicant also denied that she had a debt of A$3,500 to the Commonwealth. She claimed that she only owed A$2,500 and disputed the $1,000 RRT fee.
ASSESSMENT
23.I have taken into account the following considerations in assessing the past general conduct of Ms IN Vannary.
24.She freely admitted to knowingly providing false information in her subclass 456 temporary business visa lodged 13/03/96. If this had been known at that time the decision maker would not have granted this visa as it is a clear case of obtaining a visa by fraud and deception.
25.Ms IN admitted to knowingly providing false information in her current spouse visa application lodged 21/05/99 and lodging false birth certificates and family book (ban krue-saa) in support of this application.
26.Ms IN only admitted to falsely claiming CHHUN Narong and CHHUN Meta as her children when she was required to produce evidence and she had lost contact with them.
27.She knew and has freely admitted that in lodging this spouse visa application she was wrong applying for a visa to Australia falsely claiming CHHUN Narong and CHHUN Meta as her children and submitting fraudulent birth certificates and making bogus declarations, claims and statements.
28.The Embassy (DIMA) has contacted her in writing on a number of occasions.
29.Notwithstanding the preceding fact, she did not advise DIMA until a later stage when evidence was requested that in fact her family composition, supporting documents and information declared in her spouse application was bogus.
30.Ms IN Vannary freely admitted that the sole purpose in applying previously for a temporary business visa, tourist visa, protection visa and the current spouse visa with false claims through all stages of the process up until just prior to her interview for the current spouse visa, was to obtain an immigration advantage.
31.I have taken into account the following considerations in assessing the present general conduct of Ms IN Vannary.
32.Ms IN is married to her sponsor Mr NGO Cam Ha. They claim to have a genuine and continuing spouse relationship.
33.Ms IN stated during her interviews that she realised the seriousness of what she had done but considered the children as her own.
34.Ms IN continued to falsely claim that she had previously been married to CHHUN Chantou despite not being known in the community as being married and the lack of any evidence whatsoever to substantiate a marriage of 10 years standing.
35.I find that the applicant, by applying for subclass 309 visa with false claims as to her previous marital history and family composition, and making a number of false declarations and lodging fraudulent documents containing false and misleading information in support of these claims, sought to gain entitlement under Australia's immigration laws.
36.I find that Ms IN has not been truthful in her dealings with the department with respect to her spouse application and earlier business, tourist and protection visa applications. I have taken into account the significant resources that were deployed to resolve Ms IN's application and I find that Ms IN's general conduct demonstrates a blatant disregard for Australian immigration laws.
37.Having regard to Ms IN's past and present general conduct with this office and based on the evidence before me I find that Ms IN Vannary is not of good character in relation to her past and present general conduct and as such fails to satisfy me that she passes the character test.
(b) The respondent in his Statement of Facts and Contentions dated 13 March 2002 contended that the "Facts", contained in clauses 2 to 10 (inclusive), are as follows:
…
FACTS
2.The delegate of the Minister found that over a period of more than five years the applicant provided false and misleading information and fraudulent documents to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) as follows:
(a)for application for subclass 456 temporary business visa on 13 March 1996.
(b)for two extensions to that visa granted 13 June 1996 and 21 April 1997;
(c)for application for protection visa on 10 October 1997 and at Refugee Review Tribunal (RRT) review on 26 November 1999;
(d)for application for subclass 309 spouse visa on 21 May 1999, the subject of this AAT review; and
(e)at interview in Phnom Penh on 19 June 2001, after signing a character information sheet.
3.The applicant currently contends that the subclass 456 visa was correctly granted in March 1996 as it was the visa applicant's intent to undertake business activities on behalf of Mrs Hor Sok. However, at interview on 19 June 2001 the visa applicant admitted that she paid someone to organise a tourist visa but they unexpectedly provided a business visa, and the only business interest involved was that a male family friend subsequently asked her to take a sample of plywood (T49 at 177)..
4.In applying for extensions to her business visa the applicant described her proposed business activities as "Market survey" (T3 at 17) and "Shopping for export product to Cambodia" (T4 at 20). As detailed above the applicant has admitted that she originally intended to come to Australia as a tourist and received a business visa unexpectedly. At the hearing of the RRT constituted to decide a review of her protection visa refusal, the visa applicant was unable to provide a business or company name or any business cards or letters of introduction to justify her presence in Australia. She produced two business cards from Australian businesses but claimed that there would be no record of her dealing with them because she hadn't bought anything (T8 at 61).
5.The applicant made application for a protection visa on 10 October 1997. The application was based on her having been married to a soldier who was killed during the Cambodian coup of 1997 and/or having worked for the Chief of Police in Phnom Penh. Both the delegate of the respondent and the RRT member who decided the application found there was insufficient evidence to support the applicant's specific claims, or her general credibility (T7 and T8).
6.Whenever required to state her family composition, in all visa applications including the spousal visa which is the subject of this review, the applicant stated that that she had been married to Chhun Chantou and that she was the mother of Chhun Narong and Chhun Meta (see for example T15 at 93). The visa applicant has not been able to provide, nor have the investigations of DIMIA been able to provide, evidence of her marriage to Chhun Chantou, which was allegedly of ten years' standing. A field check of the visa applicant's home in Cambodia was unable to find any evidence of the applicant's claimed family composition (T41).
7.The visa applicant has subsequently admitted in a letter dated 11 June 2001 (T47) and at interview (T49 and T50) that Chhun Narong and Chhun Meta are not her children. The visa applicant has attempted to explain falsely declaring them to be her children by stating that she cared for the children after the death of their mother, her sister-in-law, and was their mother for all practical purposes. However, the visa applicant only revealed this information after receiving numerous immigration benefits on the basis of the information that she was the biological mother of the children.
8.The visa applicant also presented birth certificates and a Family Book which declared that Chhun Narong and Chhun Meta were her children (T34, T35 and T37). The visa applicant claims that these are not forged or bogus documents because they are the correct official document as supplied by the Cambodian government, they were simply produced on the basis of inaccurate information provided by the visa applicant's aunt. It is the respondent's contention that the documents were bogus because they contained false and misleading information which the visa applicant knew to be bogus when she submitted them in connection with applications for visas. It is irrelevant whether the documents were bogus because they were forged or because they were made on the basis of false information. The visa applicant's duty was to declare the true nature of her family composition to DIMIA.
9.It is submitted by the respondent that some, if not all, of the visa applicant's explanations are inconsistent with concessions made to DIMIA during interview and otherwise (Tp71). They should not be accepted by the Tribunal. If any of the explanations are accepted by the Tribunal, it is submitted that they are not sufficient to displace a finding that false and misleading information and fraudulent documents have been provided to DIMIA
10.The applicant also has an outstanding debt to the Commonwealth of A$3,500 (Tpp67-8 and Tp71).
(c) The applicant’s Statement of Facts and Issues dated 15 February 2002 is included as a matter of balance: it is also included as to part (and being clauses 3 to 17) as follows:
…
3.The assessing officer found as a matter of fact that the principal applicant had provided false and misleading information and documents to the Department of Immigration & Multicultural Affairs (DIMA) as follows:
a.for application for sub-class 456 temporary business visa in 13/3/1996
b.for two extensions to that visa granted 13/6/1996 and 21/4/1997
c.for application for sub-class 676 visitor visa on 17/7/1997
d.for application for protection visa on 10/10/1997
e.for application for sub-class 309 spouse visa on 21/5/1999, the subject of this AAT review
f.at interview in Phnom Penh on 19/6/2001, after signing a character information sheet.
4.The applicant voluntarily departed Australia on 8 April 2001 and returned to Cambodia.
5.The applicant disputes the assessing officer’s finding that false and misleading information and fraudulent documents were provided to DIMA as detailed as follows:
a.application for 456 temporary business visa on 13 March 1996 was made with the intent that the principal applicant would undertake some business activities on behalf of Mrs Hor Sok.
b.the application for extension of sub-class 456 temporary business made and granted on 13 June 1996 was supported by the Khmer Community of Victoria. The principal applicant’s intent was that she would undertake business activities.
c.application for extension of sub-class 456 temporary business made and granted on 21 April 1997 was supported by Cambodia Development Corporation Pty Ltd. When in Australia the principal applicant pursued business enquiries, seeking to source construction materials of Australian products for export and sale in Cambodia. The principal applicant contacted companies in Australia and viewed material and determined that the prices of the materials were too expensive to be able to successfully market in Cambodia. The principal applicant’s intent was that she would undertake business activities.
d.application for sub-class 767 visitors visa made and granted on 17 July 1997 was made by the principal applicant as a genuine visitor. At this time she had ceased her business activities and she wished to have further time in Australia to spend time with the applicant whom she had developed a friendship with at this time and an adopted aunt with whom the applicant is very close.
e.application for protection visa on 10 October 1997 was made on the basis of a genuine subjective belief that the principal applicant was at risk of being killed if she returned to Cambodia in consequence of the coup in July 1997. It was accepted by DIMA that the principal applicant may be genuinely fearful of becoming involved in incidents of random violence in Cambodia (para 5.5 of decision made 31 October 1997). It was accepted by the Refugee Review Tribunal in decision made 3 May 1999 that the applicant had a strong subjective fear about returning to Cambodia.
6.The principal applicant was married to Chhun Chan Thou who served as a soldier in the Funcinpec Army. The principal applicant has not seen Chhun Chan Thou since the coup in 1997 and he is presumed dead.
7.The principal applicant worked for Mr Hor Sok and his family between 1993 and 1996. She worked in the capacity of a cook and maid and as a clerk.
8.Mr Hor Sok was Chief of Police and he and his family were killed in the July coup in 1997.
9.In regard to the principal applicant’s application for sub-class 309 spouse visa lodged 21 May 1999 the subject of this review. The principal applicant concedes that she is not the natural mother of the children known as Chhun Narong and Chhun Meta. The principal applicant acknowledges that the birth certificates for Chhun Narong and Chhun Meta are not correct in that they record herself as the mother and Chhun Chan Thou as the father.
10.The real mother of the children is Chhun Chan Thy, the sister of Chhun Chan Thou. Chhun Chan Thy died in 1994 at which time the children were informally adopted by the principal applicant and Chhun Chan Thou. The principal applicant from that date considered the children her own. The birth certificates are the official issued document by the relevant authority and were created on information provided to the authority by the principal applicant’s aunt. The children Chhun Narong and Chhun Meta were not lawfully adopted by the principal applicant. The arrangements to adopt the children were made in accordance with common practice in Cambodia.
11.The family book submitted in support of the principal applicant’s application for sub-class 309 spouse visa is the official document issued by the relevant authority. The document records information provided by the principal applicant’s mother, Un Kim San, to the authority.
12.The information provided by the principal applicant At interview in Phnom Penh in 19 June 2001 was factually correct. The principal applicant by letter dated 11 June 2001 advised DIMA of the correct factual situation regarding the children.
13.The principal applicant acknowledges that she has an outstanding debt to the Commonwealth of AUD$3500.00. The principal applicant and the applicant agree to enter into an arrangement to repay this debt.
14.The relationship between Cam Ha Ngo and In Vannary is a genuine and continuing relationship as husband and wife. Since the principal applicant’s return to Cambodia on 8 April 2001 the applicant and the principal applicant have remained in communication with each other and have continued to provide emotional support for each other.
15.The Tribunal must decide whether the visa application must be refused under Section 501 of the Migration Act 1958 (Cth). Direction No. 21 made under Section 49 of the Act on 23 August 1991 must be complied with by the Tribunal (Section 499(2A)).
16.The applicant contends that the principal applicant is of good character. There are four grounds against which a non-citizen may be considered to not pass the character test under Section 501(6). The applicant contends that these are not made out by DIMA.
17.A non-citizen does not pass the character test if they have a substantial criminal record.
17.1The principal applicant does not have a substantial criminal record as defined in sub-section 501(7). The principal applicant has not been sentenced to death, life imprisonment, imprisoned for 12 months or more or sentenced to two or more terms of imprisonment where the total term is 2 years or more.
17.2The determination of an individual’s criminal culpability for any given act is the task of a court and that a decision maker’s opinion on whether any conduct would have constituted a substantial criminal record, should it be tried, is a violation of the “separation of powers” doctrine.
17.3A criminal record must be actual not hypothetical. No such record of the principal applicant exists.
17.4The Tribunal cannot reasonably find that the principal applicant does not meet the character test because of s.501(6)(a).
(d) It is convenient at this juncture, and while I am including extracts from documents, to include clause 2 of exhibit A8, which is a statement by Hun Ly Oeur, and which reads as follows:
…
2.During her stay in Australia, I was President of Khmer Community of Victoria, always engaging in assisting any Cambodian who needs help. And also, I was interested in promoting Australian business for Cambodia. As Cambodia requires supports from international community including Australia, there was an influx of business investors into Cambodia. Australia is the country initiating peace formulas for solving the Cambodia problem, Australia holds high respect from all Cambodian people until now. Mrs. Vannary IN asked me for help in negotiating with Australian made tiles Manufacturers and shop owners for exporting this kind of products to Cambodia. These types of materials had full potential for the market as Cambodia was under reconstruction and developing phase. It requires any kind of materials for construction purposes. I did help her to contact a few tiles companies in the Westal Road, Clayton Road in the area of Springvale, Clayton and Oakleigh. I was almost succeeded in convincing businessmen, but unfortunately, Cambodia turned into civil war by a military coup.
Mr Cadman elected, as I have said, to allow a number of statements, including exhibit A8, into evidence on the basis that he did not require the makers of those statements for cross‑examination. In the result I should accept exhibit A8, although, and as will be seen later in these reasons, I have very considerable doubts as to aspects of it.
(e) T page 22 is a letter by Mr Koy Pon, Acting Secretary of the Cambodia Development Corporation Pty Ltd dated 21 April 1997. Although no statement by Mr Pon was tendered, and although he was not called to give evidence, reference was made during the course of closing argument to that certificate, which is thus repeated as follows:
…
TO WHOM IT MAY CONCERN
I certify that my office is acting as a coordinating company for business in Cambodia. I have facilitated Miss Vannary IN, a representative of a Cambodian company, for the purpose of exporting Australian made products. Recently, she has contacted a few companies dealing with floor and wall tiles, ie, Metric Tiles Co. P/L, 38‑42 Westall road, Springvale, Victoria, 3171, Managing by Armando Marcon, and Any Tiles Co. P/L, Managing by mr. Fred Vareta, Director.
Both companies have organised some samples for her to promote in the Cambodian markets. As the marketing process taken for sometime, she intends to stay for another few months in order to facilitate the export transaction.
(f) Exhibit A9, as I have said, consists of two certificates by the chief of Potouch village; both certificates relate to the children; the certificate dated 15 February 2002 refers specifically to Chhun Narong (Narong) born 9 May 1990 and Chhun Meta (Meta) born 4 August 1992 and certifies …nowadays, these two foster children are really nephew and niece of Chhun Chantou who has gone to live with her husband's auntie".. The second certificate dated 17 February 2002 refers to the same two children, certifies IN Vannary …really brought up these two children. The second sentence of the first paragraph of that certificate then states:
…But until nowadays, these two children haven't been brought up by IN VANNARY because her husband's auntie has known that IN VANNARY got married; therefore, IN VANNARY returned these two children to the husband's auntie.
(g) Oral evidence was given by the applicant (with the aid of an interpreter in the Vietnamese language), Ms J. James, psychologist, the visa applicant, by telephone link to Cambodia (with the aid of an interpreter in the Khmer language) and also by Uon Kim San, the visa applicant's mother (also by telephone link to Cambodia and also with the aid of an interpreter in the Khmer language).
4(a) When the matter commenced, Mr Cadman advised the Tribunal that the respondent had doubts as to the genuineness of the marriage between the applicant and the visa applicant. On the final day, 3 February 2003, Mr Cadman advised the Tribunal that this was no longer an issue and that, accordingly, I could accept, as I do, that the marriage is genuine. It is in these circumstances that it is unnecessary for me to refer to a number of the statement exhibits that go to the question of whether or not the marriage is genuine.
(b) I note also as a matter of a preliminary nature that I was informed on the final day of the hearing that the debt of $3500 to the Commonwealth of Australia, referred to in clause 10 of the respondent's Statement of Facts and Contentions, has been discharged.
(c) The T documents include two records of interview of the visa applicant by the Australian Embassy in Phnom Penh. Those interview records (T49‑T50) took place on 19 June 2001 and 20 June 2001 respectively. The visa applicant said during her evidence, in relation to the interview records that she did not understand English. When it was put to her that there was an interpreter present throughout the interview, she said that, although the interviewer was pleasant to her, the interpreter was not and that the interpreter spoke to her roughly. It is relevant to note that the visa applicant both in her evidence and in exhibit R1 did not dispute the correctness of the interview record, although clause 25 of exhibit R1 states that:
…
22.Statements made by me in the records of interview dated 19 June 2001 and 20 June 2001 are correct, although having regard to the short format of the question and answer, in some regards they are not complete.
(d) The interview record in respect of the first interview, on 19 June 2001, (first interview) is of such importance that it is included in full (T pages 173‑179) as follows:
RECORD OF INTERVIEW
FILE: F99/006675
PRINCIPAL APPLICANT: IN Vannary
DATE OF INTERVIEW: 19/06/2001 @ 0845 hrs
SPONSOR: NGO Cam Ha
Interviewer: Noelani Exell Interpreter: CSO2
Officers introduced.
(i)The purpose of this interview is to ask you some questions about your migration application particularly in relation to your sponsor. Do you understand?
A. Yes.
(ii)It is important that you do not make up answers that you may think I want to hear. Just answer the questions fully and truthfully and if you do not know something just say so. If you do not understand a question tell me and I will ask it again. Do you understand?
A. Yes.
(iii)Have you read the information sheet (Khmer version) on provision of false or misleading information or deceiving or misleading or presenting a forged document to an Australian Government official? It is important that you are aware that the provision of false or incorrect infoI11lation, including at this interview, may result in your application being refused. Do you fully understand this?
A. Yes.
1.Is there anything you would like to change in your application at this time?
A. I'd like to advise you that CHHUN Naron is not actually my biological son. He is the nephew of my former husband. I adopted him since he was 2 years of age.
2.What about CHHUN Meta?
A. This is also the same.
3.How old was CHHUN Meta when you adopted her?
A.At the same time as CHHUN Naron.
4.What was her age?
A. She was more than 1 year old.
5.What is your full name and dob?
A.IN Vannary, 17/11/69.
6.What is your sponsor's name and dob?
A.NGO Cam Ha, 06107/58.
7.Has he been known by any other name? Has he used any other name?
A. No.
8.Have he previously been married?
A. His fiance from the border camp sponsored him. When he arrived in Australia she refused to marry him.
9.How did he stay in Australia?
A. He used the fiance visa to stay.
10.What happened when they did not marry?
A. He kept staying in Australia until he met me.
11.Is he an Australian citizen?
A. Yes.
12.When did be become an Australian citizen?
A. More than 10 years ago. He has been staying there for more than 11 years.
13.Have you previously been married yourself?
A. I have never married but I had a husband.
14.Can you explain that further please?
A. Our parents did not have enough money for the wedding so we celebrated a small ceremony to worship our ancestors.
15.But he was your husband?
A. Yes.
16.What was your previous husband's name and dob?
A. CHHUN Chantou. 01/02/62.
17.What are the names of his parents and siblings?
A. CHHUN Srang(m) - deceased, CHHUN Chan(m) - deceased, CHHUN Chan Tay (f) – about 42.
18.Where did you meet your previous husband?
A. We met each other through mends.
19.Where were you living when you met?
A. In Phnom Penh.
20.When were you married?
A. 31/12/87.
21.Where were you married?
A. It was not a formal wedding ceremony, it was just a small ancestor ceremony at my home.
22.When and how did the marriage end?
A. On 07/07/97 he died.
23.How did he die?
A. During the coup.
24.Why do you have no photographs of your wedding to CHHUN Chantou?
A. We could not afford photos.
25.Why do you have no photographs of your claimed 10-year marriage to CHHUN Chantou?
A. He was a soldier so he normally moved from one place to another and I was busy finding money to feed our family and then he did not have time.
26.I would like to caution you again about telling the truth and remind you of the consequences that your application may be refused if you mislead this office. Do you understand?
A. Yes.
27.Information obtained during a field visit to your former address indicated that in the community you are not recognised as ever having been married nor have any children. Would you like to comment please?
A. That is incorrect, as those people did not know about my relationship. They are in fact my former husband's niece and nephew and I adopted them as my own children.
28.But why were you not recognised in the community as previously being married?
A. We lived together for about one year and we had internal problems then he left me. Most of the people in my place knew that I was divorced.
29.So you consider yourself divorced from your first husband?
A. Yes, but I do not have any documents to prove it because he just left me.
30.Why did you declare that the relationship ended with his death and not your divorce in this application?
A. I reconciled with my husband and I came to live with him in his place. I did not return to my mother's home.
31.When did you return to your mother's home?
A. I only came to my mother's home to visit her.
32.Why is it recognised in the community that you lived with your mother?
A. I just came to live with my mother before I went to Australia. The neighbour did not know that I went to live with my husband. They just saw me around at my mother's house.
33.In a letter received by us 11 June 2001 you clarified that the children included in your application form are your adopted children. Please explain why you included the children as your own in the application initially.
A. I did not think carefully about it when I lodged the application. When I received that letter from this office I could not find them and I decided to tell the truth.
34.So the birth certificates you submitted for CHHUN Narong and CHHUN Meta listing CHHUN Chantou and yourself as parents contain false and misleading information. Is this correct?
A. We are only their adopted parents. My aunt arranged these for me and she told the authorities that we were the parents, but actually we're not.
35.Do you realise that your application may be refused because of providing false and misleading information?
A. I believe that I am considered to be the biological parent.
36.How did their birth mother die?
A. She died of heart cancer.
37.When did she die?
A. In 1994, I can't remember the day and month.
38.Where was her husband?
A. They got divorced. I do not know when.
39.What are the children's dobs?
A. Narong was born in 1990 and Meta was born in 1992.
40.So that means the children were 4 and 2 years old when they came to live with you?
A. Yes.
41.Previously you claimed that they were 2 and just over 1 when they came to live with you. Please explain.
A. I mean that when they lived with their mother they were 2, but when I adopted Narong was about 4 years.
42.Previously the question was clear about when the children came to live with you. You answered they were 2 and just over 1.
A. I mean they were 2 when they lived with their mother.
43.When did they come into your care?
A. In 1994 when their mother died.
44.Where [sic] you with your husband at this time?
A. Yes, I was with my husband.
45.Previously you stated that after one year you and your husband separated. When did you reconcile?
A. We broke up in 1998 and we reconciled in 1990.
46.Where did you live together?
A. At his work place.
47.Where was that?
A. It is a military camp of Kom Pong Luang village.
48.Where were you living when you adopted the children?
A. At this place.
49.So you brought the children to a military camp to live?
A. It was my former husband's problem too because they are his niece and nephew.
50.When did you first leave for Australia?
A. In 1996.
51.Who looked after the children when you left?
A. My former husband.
52.You claimed that your husband was always away, why did you leave the children in a military camp with your husband and go to Australia. How could he look after them?
A. Friends looked after the children for him.
53.Where was this?
A. In the same military camp.
54.Why did you Dot return from Australia?
A. I had been visiting Australia for some time and then when I had bought my ticket to return there was the coup and there were no flights.
55.This was in July 1997, but your visa was initially for only 3 months. Please explain?
A. The ticket I bought was on July 7. I did not realise that it happened like this.
56.How did you stay in Australia for an extra year?
A. Then I seeked to stay in Australia under a refugee status.
57.Why did you leave your husband and the children in your care behind?
A. I did not have this kind of intention. I only intended to visit But because I could not travel back to Australia I decided to seek refugee status.
58.When did you travel for the first time to Australia?
A. Probably on 21/3/96.
59.The coup was more than 1 year later. Why did you not return at the end or your initial 3 month visa?
A. I was still afraid the situation in Cambodia at that time and I wanted to wait for a while before I returned. It was about the time of elections in Cambodia.
60.Why [sic] type of visa did you initially travel to Australia on?
A. Business. I requested for a tourist, but they provided me with a business.
61.What business were you in?
A. I was a dessert seller.
62.What was your business interest in Australia?
A. I only requested a tourist visa, but was granted a business visa. I got a friend in Cambodia and his family was in construction. He asked that if went there could I take a sample of the plywood.
63.Who organised your initial visa?
A. I do not know the name.
64.Did you do it yourself or did you use an agent?
A. Someone organised it for me.
65.How much money did you pay?
A. About US$2,000.
66.What did you need to do for the application?
A. I did nothing. They did not tell me.
67.What information did you have to provide?
A. Only family book and filled in the application form.
68.Where are the children living now?
A. They live with my husband's aunt.
69.And you do not know where this is?
A. No, I do not.
70.During a field visit to your house your mother claimed that the children were living with the sister of your deceased husband. Could you please explain?
A. My mother when she was questioned about these two children, she clearly informed this office that the children were living with the aunt of my former husband. He has no siblings. He has a sister who now moved to live with her husband (CHHUN Thy).
71.Who were the parents of the children?
A. CHHUN Chan Thy was the mother of the children.
72.You just said that he had a sister who moved away to live with her husband. Please explain.
A. I mean that when I just got married with my husband. And later on my former husband met his sister when she got sick.
73.Yon claim that CHHUN Meta's dob Is 04/08/92, yet the family book you submitted in your application indicates that she was registered 19/07/92. This is before she was born. I would like to caution you again about the consequences of providing false and misleading information - particularly at this interview and that your application may be refused if you do not tell the truth. Do you understand?
A. Yes.
74.How could CHHUN Meta be registered in the family book before her birth?
A. It is the date of when we came to live in this house and we were in a family group.
75.But she was not born?
A. I told you that I did not know the exact day of birth.
76.Is this a genuine family book record?
A. That is correct that it is a genuine family book.
77.Who organised the family book?
A. The local authority.
78.Who provided the information?
A. My mother. She only mentioned about the year, she did not mention about the date and month.
79.So who entered the date of birth?
A. The local authority.
80.How long have you known the sponsor?
A. Since 1997 when my husband died.
81.What are the names and ages or dobs of his family?
A. I do not know their name. It is in Vietnamese and is quite hard to pronounce. He has a step‑mother as his mother died.
82.How many siblings does he have?
A. He has two stepbrothers.
83.What are their names?
A. It is too hard for me pronounce their names. One is called Phou.
84.Where do they live?
A. One in Vietnam and one in Japan.
85.When did the stepbrother go to Japan?
A. He went to Japan in 1998 as a student.
86.Is he still there?
A. Maybe he is already back home.
87.So what members of your sponsor's family have you met?
A. I met all of them except the one living in Japan.
88.When did your relationship start?
A. On 20/04/99 we married 1999.
89.When did the relationship start prior to the marriage?
A. We came to know each other as friends since 1997.
90.How many guests were at the wedding?
A. About 20 - 30 people.
91.Has the sponsor been married previously?
A. No.
92.Initially you went to Australia on a business visa and you claimed at interview to be a dessert seller. Why did you not declare this in your employment history in your current spouse application form?
A. At the time I was a seller. But know [sic] I am doing home duties.
93.Why did you not include this in your employment history?
A. The business was not big so I didn't think it was important to declare.
94.Why did you apply for a protection visa in Australia?
A. Because my former husband was a soldier and he was associated with the FUNCIPEC party.
95.What grounds did you include in your protection visa application?
A. I used to live with HO Sok he was the general.
96.When did you lodge the application?
A. In 10/97.
97.Did you include the children in this application?
A. Yes.
98.What happened to the children after your husband died?
A. They came to live with my former husband's aunt.
99.Why did you exhaust the process up to seeking Ministerial Intervention with your protection visa application?
A. I had been married for two days when the protection office requested an interview. The application was refused at the time I was married to my sponsor so I requested for review.
100.Did you request for review so you could stay with your sponsor?
A. Yes.
101So you continued the process up to ministerial intervention so you could stay with your sponsor?
A. Yes, because we got married.
102.Who organised the protection visa applications?
A. I forget his name.
103.What organisation was it?
A. A lawyer.
104.Why did you declare in your spouse visa application in Q. 72 that you had never previously been to Australia?
A. I informed the person who filled in this application about this status. I don't know what happened with this information. It is a mistake of the person who filled in the application. This application was filled in when I was in Australia so how could I deny this.
105.Do you still have an outstanding debt to the Commonwealth of Australia?
A. Yes, A$2,500.
106.Why did you declare in your spouse visa application in Q. 70 that you do not have any outstanding debts to the Australian Government or any public authority in Australia?
A. This application was lodged in the office before the review fee was required.
Interview ended.
[sgd] Noelani Exell
Case Officer19 June 2001
(e) In respect of the second interview (on 20 June 2001), I include only questions 1 and 5 (and the relevant answers to those questions) as follows:
…
1.Do you agree with this finding that due to your past and present general conduct you are not of good character?
A. On the protection visa application I pad A$1,000. If the application was unsuccessful I had to pay over A$10,000 to the Australian Government. My application was not processed. I heard that I would have to pay too much money so I withdrew my application. Soon after the withdrawal of my application I received a letter from Government that I had to pay A$3,500. I didn't know what the A$3,500 was for, but I was told that this was for the withdrawal of the application. I negotiated with them and it was decreased to A$2,500. When my application was refused I was not allowed to work so I said to the Government that I would pay the money if I could work. My request was approved. I don't agree with the outstanding debt of A$1,000 for the RRT fee, I only agree with A$2,500. [In review – If I owe A$1,000 the Government should send me a letter telling me about this.] With my application I paid A$1,000. Upon return from holiday in Vietnam I was requested to pay another A$500 for application fee for review. So in total I have paid A$1,500.
…
5.You should note that in all cases involving parental or other close relationships between a child or children and the visa holder, a primary consideration would be the interests of the children. Do you wish to make any comment regarding this matter, including the impact on your children should your visa be refused?
A. Before my return back to Cambodia there was a minor problem. On my arrival back in Cambodia I visited by adopted children's house. Unfortunately they have moved.
PART B - THE EVIDENCE OF THE APPLICANT AND MS JAMES
5. The first witness to give evidence was Ms James. She gave evidence (which I accept) that the applicant was depressed by his separation from his wife and that he greatly desires to be re‑united with her. Her report (exhibit A1), which refers to an earlier report made in August 2002 and which was not tendered in evidence before me, indicates he is a genuine and simple man, that his psychological health was affected by his difficult early years in Vietnam, but gained from association with the visa applicant.
6. As appears from exhibit A10, the applicant had a very hard time in Vietnam (see clauses 6, 7 and 8 of exhibit A10). He came to Australia in consequence of a sponsorship by a former girlfriend who had moved to Australia. The break‑up of that relationship caused him to become very depressed and unhappy; that depression was alleviated to a great extent when he met and subsequently married the visa applicant. He met her in 1997 (when she became a neighbour); that relationship matured into something more by 1998, and they were married in 1999.
7. The applicant is employed by a company which makes Toyota motor vehicle parts. He has a position of some responsibility and he is in charge of a group of other workers. He currently operates a forklift truck but can, more aptly, be described as a process worker.
8. The applicant and the visa applicant were married on 11 May 1999. The decision of the Refugee Review Tribunal (the RRT), refusing a protection visa to the visa applicant, was issued on 3 May 1999, and so that the applicant knew, when he married the visa applicant, that she did not have residency status in Australia and, indeed, that she had been refused a protection visa.
PART C – THE BUSINESS APPLICATION
9. In 1996, the visa applicant was employed by Mrs Hor Sok as her cook. Mr Hor Sok, her husband, was variously described as a Chief of Police and an employee in the Ministry of the Interior. I am prepared to accept that he was a senior person in the then ruling party and a member of FUNCINPEC. At that time she had been so employed for more than one year. At page 118 of the transcript Mr Purcell asked the visa applicant whether, besides being a cook to the family, she did anything else. Her answer was, "When I was there, I did only that job." Mr Purcell's next question was, "Have you done anything else for Mr Hor Sok apart from being a cook?" The answer was, "Besides cooking, no. His wife arranged to – organised to make a visa for me to come to Australia." The transcript goes on to set out that Mrs Hor Sok was involved in a construction material business.
10(a) The transcript at page 125 (and following) indicates that, before she worked for Mrs Hor Sok and the Hor Sok family, the visa applicant was, for one and a half years, a business woman, selling clothes at the Olympic Market. However, that business was not successful, in consequence of which she took up a position as cook to the Hor Sok family. The transcript, at page 127, contains a statement by the visa applicant that she knew no one in Australia before her trip in 1996. In another part of her evidence, the visa applicant referred to her being a sewer of clothes, and as an employee. At the time that evidence was given, the Tribunal sought to clarify whether she meant a sewer or seller of clothes and she made clear that she meant to say that she was a sewer of clothes. The first interview record contains an answer by the visa applicant to the effect that, at the relevant time, that is 1996, she was a dessert seller. She claimed, both in evidence before me and before the RRT, that, in addition to being cook to the Hor Sok household, she was also secretary to Mr Hor Sok and, as she put it, ran an election for him.
(b) The visa applicant was young during the Pol Pot regime, which ended in 1979. However, her life was disrupted and, in consequence of those disruptions, she had, so she said, very little education. There was no evidence before me as to just how little education she had.
11. The first interview record (and see questions 61 to 64) sets out that, in accordance with her answers, and as I have said, the visa applicant was a dessert seller, moreover that she requested a tourist visa only but was somehow granted a business visa. The answer to question 62 sets out that a friend in Cambodia with his family was in a construction business and that he asked her to take a sample of plywood to Australia. The Tribunal infers, having regard to the language used, that the friend was male.
12. The visa applicant's evidence before me differed from that contained in the first interview record. She said that Mrs Hor Sok was involved in a construction business and that she, Mrs Hor Sok, arranged a business visa for the visa applicant to come to Australia and to enable the visa applicant to investigate prospects for the export of Australian goods to Cambodia. The Tribunal notes that, if the emphasis was on exports of Australian goods to Cambodia, it would be unnecessary for the visa applicant to bring samples of plywood to Australia. Mrs Hor Sok, according to the evidence, provided all of the necessary moneys, including the airfare and some money for expenses. The visa applicant did not stay in a hotel but appears to have found accommodation with friends. The first interview record is indicative of the fact that the visa applicant intended to come to Australia only as a visitor, that the business visa grant happened accidentally and that, as a result of that accidental grant, a friend (name unknown) asked her to take some samples to Australia.
13. The visa applicant's evidence as to her business activities in Melbourne was vague in the extreme. It must be remembered that she could not read or write English, and, indeed, at this stage still has no English. She had no knowledge of the construction industry and she had no introductions to businesses in Victoria. As she said, she knew no one. She had no knowledge whatever of important business aspects, including questions of customs and excise, letters of credit and other relevant financial matters. She was, as she told me in evidence, simply, the cook to the visa applicant's family although she subsequently claimed that she also fulfilled other functions.
14. The visa applicant said that she made some attempts to do business in Melbourne. She was not able to specify any names of any persons or organisations approached and, in general terms, could furnish no information of any kind as to what efforts she made. I doubt whether she ever made any effort at all, and, indeed, she was spectacularly ill‑qualified for an enterprise of this nature. Mrs Hor Sok was not called to give evidence or to make a statement. According to the visa applicant's evidence, Mrs Hor Sok is still in Cambodia but perhaps in hiding, because she is in danger in consequence of her husband's political affiliations and she, the visa applicant, does not know Mrs Hor Sok's whereabouts.
15. On the final day of hearing, as I have said, the visa applicant said that, in addition to being the cook to the Hor Sok household family, she was also secretary to Mr Hor Sok and as such ran his electoral campaign. Claims of a similar nature were made before the RRT. The term "ran" in this context would appear to have extended to her handing out leaflets but not more.
16. As the chronology indicates, the business visa was renewed twice and, moreover, on two occasions the visa applicant returned to Cambodia, albeit for brief periods only. She said that her airfares were provided by Mrs Hor Sok. Further business efforts (not one of which could be particularised) were made, and, in part, with the assistance of Hun Ly Oeur (exhibit A8). He said that he helped her to contact "a few tile companies" but does not specify who they might have been. T page 22 is, as I have said, a letter by a person who was called neither to give a statement nor give oral evidence. He does mention the names of two tile companies in Melbourne. Moreover, T page 22, being a certificate by Koy Pon, indicates that these companies "…have organised some samples for her". However, the visa applicant said nothing whatever about either of these firms or about doing business with them.. The visa applicant, in this context, spoke of obtaining one order, which could not be implemented because of the coup in Cambodia in July 1997; there was no evidence whatever as to that order. The Tribunal does not know what it related to or its terms or even what sort of construction material was involved. The documentation in this case is very large, and one would have thought that this important document could have been produced. If the visa applicant had mislaid her copy of any relevant order, a copy would, presumably, have been obtainable from the concern which placed it.
17. The Tribunal does not accept that there was an order, as referred to in the preceding clause. In particular, it does not accept the truth of the statement in T page 22. The Tribunal, moreover, is obliged to treat exhibit A8 with considerable reserve and doubt, notwithstanding Mr Cadman's acceptance of the tender of that exhibit. In all the circumstances, the Tribunal cannot accept that there were any business activities of any kind. As to how the visa applicant came to receive a business visa instead of a visitor visa (as she indicated at the first interview), is a mystery but then so much of the evidence in this case is equally mysterious.
18. Why would Mrs Hor Sok send her cook (described by the visa applicant herself at the first interview as a dessert seller) to Australia on a mission such as this? Why having sent her, and after she had produced no business, did she send her twice more? The answer must be that she did nothing of the kind. The RRT in its reasons, affirming the refusal of a protection visa (T8), had grave doubts as to her credibility. A part of these reasons commencing with the third paragraph on T page 64 and ending with the second paragraph on T page 66 is repeated as follows:
…
The Tribunal is not satisfied with her account of her employment with the Hor Sok family. Firstly there were significant discrepancies in the occupations she has listed throught [sic] the processing of her claim. In her application for a protection visa, she claimed to be a maid/chef in his house. She also has claimed, in her visa applications, to be a saleswoman. At her Tribunal hearing she stated that she was a secretary/clerk for Hor Sok and also that she had come to Australia as a purchasing agent on behalf of Mrs. Hor Sok. It is plausible for people in Cambodia to fill multiple roles given the lack of employment and the lack of set structures, following the destructive Pol Pot years. However, the Applicant proved unable to answer questions which could have supported her claim to have held responsible posts with Hor Sok or his wife.
It is significant for this decision that the Applicant first arrived in Australia in March 1996 and did not leave again until September of that year. She returned again the next month, October, and did not leave until mid-January 1997. Her third arrival was a few days later and she has not departed since that date. That is, since March 1996 to the time of the July 1997 coup she had been out of Cambodia for 15 months. Her explanation was that she was acting as a purchasing agent for Mrs. Hor Sok. However, she gave most unconvincing answers to questions about the business. She had no detailed knowledge of how business was conducted in Australia. She had no knowledge of a company name, line of credit, necessity of establishing a business identity nor how to conduct negotiations. The Tribunal does not accept cards from two tile centres as evidence that she conducted business with these firms. They were the sort of promotional business cards used by many firms and their salesmen. These doubts were put to her by the Tribunal and she was offered an opportunity to respond. She was unable to do so. Although she then submitted a card from Mr.. Kevin Khien of the Royal Cambodian Development Corporation, she stated that he would have no record of her business transactions as she was only on the point of making purchases when the coup happened.
The Tribunal has also taken into account the length of time the Applicant was out of Cambodia and apparently achieved nothing at all in the line of the claimed business. Her explanation, that the coup intervened, is unconvincing in the light of 14 months spent in Australia. The conclusion the Tribunal has formed is that she was not engaged in this kind of business venture. It notes that on the occasion of each of her periods in Australia she has applied for a business visa. However, her lack of knowledge of business dealings in Australia undermines her claim that this was her reason for wishing to enter Australia. The Tribunal is unable to conclude why she made three trips to Australia. It notes that she has an adopted aunt to whom she is very close and that she has told the Tribunal that this was one reason for her visits. The Tribunal accepts this. It does not accept her major claim that she came for the purposes of acting as a purchasing agent for her employer.
The Tribunal is not satisfied that the Applicant had any close relationship with the Hor Sok family. While it is possible that she worked as a maid/cook in the household for a time, her evidence does not support her claim to have been Hor Sok's secretary and certainly not at the time of the 1994 election. She was unable to answer questions about Mr. Hor Sok such as his political/military background - information which would be elementary for anyone who had worked with him on a political campaign. Her knowledge of FUNCINPEC also was minimal. These factors do not prevent a conclusion that she had worked for him at some time nor that she supported FUNCINPEC. However, they do not allow of a conclusion that she was a significant and trusted employee of the family as she has claimed.
As indicated above, the Tribunal has accepted the possibility that the Applicant was widowed by the events of the July 1997 coup. It does not find that this places her in a situation of risk for reasons of her political opinion or an imputed political opinion. It accepts that she, like most Can1bodians, continues to fear for her safety in a country which has suffered severely in recent decades. It accepts that she is not yet convinced that the 1998 election heralds a new stage in Cambodia's history. It accepts that there are substantial criticisms of the level of recognition of human rights in Cambodia made by reputable agencies such as Amnesty International. However, the conclusion is not that any Cambodian is thereby a refugee under the Convention. There must still be a differential risk for a Convention reason. The Tribunal is not satisfied that the Applicant's claims permit such a conclusion. It is not satisfied that she has a particular political profile nor that any association with the family of the late Hor Sok places her at risk of harm on her return. It has given weight to the absence of substance to her claim to have worked in Australia on Mrs. Hor Sok's account and to the fact of her long periods of absence from her own country since 1996.
In the changed and changing circumstances of Cambodia, the fact that she has been absent for much of four years makes it difficult to conclude that she would be a recognised supporter of FUNCINPEC. However, even if she was, the fact that FUNCINPEC now works with the dominant CPP has diminished whatever risk there was for FUNCINPEC supporters. The Tribunal is satisfied that the Applicant can return to Cambodia and not suffer persecution for reasons of any association with FUNCINPEC or officers.
PART D – THE FIRST HUSBAND AND THE CHILDREN
19. The evidence as regards the visa applicant's first husband and the two children, who are not her children, is shrouded in even more mystery.
20. The visa applicant said that she was first married to Chhun Chan Thou (first husband) in 1987 and that he was killed in July 1997. There was no religious or civil ceremony but merely, apparently, some form of feast, together with "worship of ancestors". When asked whether there had been a binding marriage, the visa applicant said that there was. She said that, after the fall of the Pol Pot regime, people did not register marriages, between 1979 and 1987, but thereafter they did. (The significance of 1987, except that it was the year of her alleged "first marriage", was altogether unclear.) There was no marriage certificate produced in this case. According to the visa applicant and also her mother, referred to previously in these reasons, the first husband was a captain in the infantry. As such, he moved from place to place and from time to time spent periods, usually not exceeding 10 days, at the home of the visa applicant's mother. The visa applicant said that, when he was posted to military camps, she accompanied him, but not when he was involved on active service.
21. There was, according to the visa applicant, a period of separation between her and her first husband in the late 1980s. There was some evidence which indicated a separation of about one year, although other evidence referred to a longer period. The visa applicant's evidence before me did not mention a divorce, although exhibit R1 does. The evidence, too, in this connection was unclear in the extreme.
22. Two children figure in this case; Chhun Narong (Narong) was born, according to his birth certificate (T page 146), on 9 May 1990. That birth certificate is recorded as having been procured in 2000 at the instance of IN Vannary (the visa applicant). It records that Narong's parents are the first husband and the visa applicant respectively. The visa applicant 's evidence was that she asked her mother to obtain the birth certificate of Narong and also of Meta (referred to in the next paragraph). According to the certificate itself, it was obtained at the instance of the visa applicant herself, although it must be noted that she was in Australia at the time. It will be remembered that there was a correction to exhibit A10 insofar as it referred to birth certificates having been obtained at the instance of the visa applicant's aunt, when they were obtained by her mother.
23. T page 145 is the birth certificate of Chhun Meta (Meta), a girl, born on 4 August 1992. Again, the birth certificate was procured in 2000 with the visa applicant as the reporter and with the child's parents recorded as the first husband and the visa applicant.
24. In fact, the children were not the children of their alleged parents at all. They are the children of the first husband's sister, Chhun Chan Thy (Thy), who died in 1994 and her own husband who died before the birth of Meta. The Tribunal, again, notes that in 2000 the visa applicant was in Australia.
25. The first interview record indicates that the visa applicant was confused about when and how the two children came to live with her and the first husband. She said that she adopted them and so much so that she regarded them as her own children, and moreover, that, in Cambodia, fostered or adopted children are in all respects the same as natural children.
26. It is reasonable to assume that, when the children were born, their births were registered by their own natural parents. However, no such birth certificates were produced. Nor, for that matter, was there any record of their adoption by the visa applicant and her first husband.
27. The family book, which is T 37, refers to the visa applicant's mother as the head of the family and refers to the children as the children of the visa applicant and the first husband. In the case of Meta, whose date of birth is referred to as 1992, the date of registration, in respect of this and all other entries, is recorded as July 1992, which is a date prior to the birth of Meta. The reporter, according to the evidence before me, is the visa applicant's mother, Oun Kim San. As the first interview record makes clear, the family book is fictional in a number of respects, but, most particularly, because it refers to Meta before she was born. On the third day of the hearing, the visa applicant said that there had been an error and that Meta was born in July 1992 and not August 1992. It should be noted that one of the certificates, which comprises exhibit A9, refers to Meta as having been born in August 1992.
28. In 1996, the visa applicant came to Australia and, with the exception of two brief trips to Cambodia, she remained in Australia until she was obliged to leave in 2001. On the third day of the hearing, she spoke of returning to Cambodia in 2001 because of her mother's precarious health. What then of the children during all of this period? The visa applicant said that they remained with the first husband, at least, until his death, and then they went to her mother until they were removed from her mother by another aunt of the children and that the whereabouts of the children is currently unknown. There are references in the written evidence before me to their having been with friends but the identities of the friends are not set out in the evidence in question. How, in fact, did they come to disappear so comprehensively? Why did the visa applicant's mother not insist on retaining them? Why, indeed, were they (apparently forcibly) removed? None of this is explained. The visa applicant said that, while in Australia, she worked picking fruits and sent money for their support but she did not specify how much support was provided or when it was provided. One of the certificates, which comprises exhibit A9, sets out in fact that the visa applicant handed the children over to the aunt, and in other words, contradicts her assertion that they were removed. The visa applicant said that the aunt, who removed them, was upset by her marriage to the applicant and thought that that marriage would result in the visa applicant losing interest in the children.
29. The visa applicant said that she regarded the children, in all respects, as her own; but her responsibilities seemed to have weighed on her very lightly. She left them with her first husband, notwithstanding that his profession left him in no settled place at any time, when she left Australia in 1996. That relationship with the first husband could not have been secure since she did not become aware of his death in July 2001 until very late in the year when her mother informed her. As I have said, the visa applicant did not return to Cambodia until 2001, when she was obliged to do so.
30. The first husband is a very shadowy person. Document T45 (T page 168) is his death certificate; that document was issued (very surprisingly) at the instance of the visa applicant's mother. The cause of death is given as "…event dangerrous in 7 July 1997 has bombed". T page 166 is a certificate by his military commander which talks of his "…disappeared forever on July 07, 1997". The RRT reasons specify (at T page 60) that "…She heard that a "secret agent" came to the house and took him away".
31. As to whether the first husband is dead or even as to whether he ever existed is unclear and indeed doubtful. The first interview record casts doubt on her ever having been married at all to the first husband, having regard, in particular, to a site inspection by the Australian Embassy.
32. The only official certificates and document before the Tribunal are open to considerable doubt as to their validity.
PART E – OTHER VISA APPLICATIONS
33. As the chronology indicates, the visa applicant applied also for a visitor visa and various other visas. Her application for a spouse visa was incorrect in that she recorded the two children as her own. Assuming that that was understandable on the basis that she regarded them as her own (although on the evidence that statement is itself open to some considerable doubt), it also states that she had never previously been to Australia. When she was cross‑examined about this incorrect statement, her answer was that she thought that she was being asked about the first business visa. In general terms and in regard to all applications, the visa applicant usually indicated that someone else had prepared it.
34. I do not think that it is necessary for me to go into the visa applicant's protection visa application in great detail. She said that she was poised to return to Cambodia in July 1997 but was prevented from doing so because flights to Cambodia stopped. However, they resumed shortly thereafter; but she, nevertheless, stayed in Australia despite her alleged concern for the children because, so she said, she thought she might be in danger. The RRT found that, in fact, her claim to be a refugee could not succeed and found against her on a number of credibility grounds. She was never a member of the political party of which Mr Hor Sok was a member. She was merely a cook in his household notwithstanding her claim to have fulfilled other functions. And here again, there are discrepancies. Before me she said that Mrs Hor Sok was in hiding in Cambodia; but before the RRT she said that Mr Hor Sok's wife and family had fled Cambodia. The RRT findings are comprehensive. It accepted that she might have had genuine fears in July 1997, but that statement in turn was made on the basis that it was conditional on the fact that her husband had, indeed, and in fact, been killed in the fighting. The Tribunal shares the RRT's doubts as to her credibility on this aspect and cannot accept that the refugee application was made in the genuine belief that it was true. It is noteworthy that the application was made only on 15 October 1997, some months after the coup in Cambodia and after the periods prescribed in respect of other visas granted to her (see in this context the chronology referred to earlier in these reasons) had expired. It is unnecessary for me to deal with the various bridging visas referred to in the chronology.
35. As the documents before me indicate, the visa applicant made herself party to a Federal Court of Australia application which was dismissed by consent. As Mr Purcell contended, it was legal for her to do so. It does, however, lend (additional) weight to one inescapable conclusion; and that is, that for a period of five years the visa applicant was prepared to take every possible step and to make whatever statements (whether or not truthful) necessary in order to gain and retain entry into Australia. I have already found that she did no business here and indeed that there is no basis on which she could have done so. Similarly, she was not, and never had been, a refugee and she knew that this was so. The chronology indicates that there was a period when she was illegally in Australia, but, as I indicated at the hearing, I do not intend to regard that brief period as significant.
PART F – THE CHARACTER TEST
36. I must, in all the circumstances, find that the visa applicant has, on a balance of probabilities, committed a large number of breaches of s.234 of the Migration Act 1958 (the Act). The maximum penalty prescribed is such that I must regard those breaches as very serious, even apart from clause 1.9 of the Direction Nº 21 – Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 (Direction 21).
37. Mr Purcell contended that there was evidence of recent good conduct before me. That good conduct, so he asserted, is the visa applicant's care for the two children. I have previously noted that I do not know how much money was sent to Cambodia for the children or when, but I am prepared to accept that there was some financial support, albeit small and albeit sporadic. On any basis, however, and leaving aside the fact that her responsibilities do not appear to have weighed heavily upon her since leaving Cambodia in 1997, the "good conduct" was not, on any basis whatever, properly characterised as recent.
38. Mr Purcell contended further that her marriage to the applicant in 1999 and the fact that she brought him comfort should be treated as evidence of recent good conduct. I do not agree.
39. I must in the circumstances find that the visa applicant fails the character test. I have taken into account in this regard that her evidence before me was often evasive, and often not truthful and often inconsistent (when compared with other evidence before me).
PART G
40. I turn now to consider Direction 21. (In this Part G clause references should be treated as references to numbered clauses in Direction 21.)
41.Clause 2.3 of Direction 21 provides that the primary considerations as follows:
…
2.3 …
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
42.Clause 2.5 must be read in conjunction with clause 2.3; it provides:
…
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non‑citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
43. The provisions of clause 2.3(c) are not relevant. Although the children were referred to in the spouse visa application (although not in the applicant’s supporting application) they have disappeared and I was informed that this application does not relate to them, and that their interests are not a relevant consideration for the purposes of this decision.
44. The conduct of the visa applicant was undoubtedly serious within clause 2.6(c). It must be remembered that the Tribunal is here concerned not with one isolated incident, but rather with a whole series of incidents of untruthfulness over a period of five years and constituting, on a balance of probabilities, repeated breaches of the Act. I have said that the visa applicant was prepared to stop at nothing in her efforts to gain residency status in Australia. She was prepared for this purpose to a large extent to abdicate her responsibility to her first husband (if he existed) and to the children. I cannot accept that behaviour, such as this, is indicative of great concern for two children alleged to be, so far as she was concerned, her own.
45(a) Cases involving Cambodia have, understandably enough, come to be regarded as being in a category of their own. This is so because it is apparently simple enough to obtain official certificates and documents which record whatever the reporter desires. The birth certificates, to which I have referred, are an example. How could the reporter have been the visa applicant when, in fact, she was in Australia at the time?
(b) In respect of clause 2.5(b), the risk of recidivism is not easy to assess. If she received a visa, she might not need to re‑offend. However, the repetitious and constant nature of her breaches, coupled with the fact that she gave untruthful evidence before me, leave me to consider that the risk of recidivism cannot be discounted.
(c) In this case, the deterrence factor is of particular relevance. In Re Uch and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1119, I said in clause 19(e) that:
…
(e) That statement has been cited with approval subsequently. As I have said, the situation in Cambodia is in my experience particularly difficult. There is, apparently, in Cambodia a body of “arrangers” who are willing and prepared to concoct a fictitious story and moreover have the means which enable them to procure the issue of false certificates of every description. In some cases the whole charade and the false documents are, on close analysis at least, to some extent, unnecessary. So far as I can tell in the absence of evidence by the adoptive and the natural parents, the false evidence and documentation arose in consequence of the visa refusal in 2000.
The first sentence of paragraph 19(e) of the my decision in Re Uch refers to Deputy President McMahon's statement in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, that statement, at 155‑156, reads as follows:
This section sets out the circumstances in which non-citizens may become illegal entrants. Many of the provisions of the section are reflected in the regulations, particularly in Sch 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first subsection to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
To grant a visa in circumstances such as is, would, in my view, be to send entirely the wrong message.
46(a) Again, referring to Re Uch, and in relation to the expectations of the Australian community, as to which see clause 2.3(b) read with clause 2.12, I said in clause 19(i):
…
(i) With regard to clause 2.3(b) read with clause 2.12, it is of course trite to say that Australia expects non-citizens to obey its laws. It was contended that the Visa Applicant would, if this application fails, suffer a loss of face. Just such an allegation was made before Deputy President Wright in Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485, but without success. This is, in my view, a case where in the light of all of the false statements and perjury, the Australian community would expect me not to recommend the grant of a visa. …
(b) As to clause 2.17, I accept that to refuse a visa to the visa applicant would cause hardship to the applicant. It must be remembered, though, that he knew when he married her that her immigration status was uncertain. To contend, as Mr Purcell did, that she had not yet exhausted her rights of appeal because she was still able to apply under s.417 of the Act, is not, in my view, a tenable contention.
(c) The possibility of refusal of a spouse visa and its consequences were put to the applicant. He said that, while he would want to remain in Australia and would not want to live in Cambodia, visits would be possible. Similarly, the possibility of the applicant and the visa applicant being reunited in Vietnam was possible, if not probable. The applicant does appear to be a person who could get a job elsewhere, because he is a skilled worker. His evidence was impressive but, unfortunately, as I indicated at the hearing, it is not his character which is in issue.
47. To recommend the grant of a visa in these circumstances to a persistent and repeated offender against the Act, when the only real countervailing factor is hardship to a husband with knowledge, would be directly contrary to a large number of decisions given in this Tribunal. Mr Purcell urged me to accept that, leaving aside a few incidents, the visa applicant was largely truthful, at least, in the sense that she believed what she said. However, a careful consideration of the evidence and all of its inconsistencies must lead me inescapably to exactly the opposite conclusion.
48. In all the circumstances the decision under review is affirmed.
I certify that the forty‑eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J. Block
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 25‑26 June 2002
30 September 2002
01 October 20023‑4 February 2003
Date of Decision: 6 March 2003
Solicitor for the applicant: Mr R. Purcell, Katis Purcell AnthonySolicitor for the respondent: Mr P. Cadman, Blake Dawson Waldron
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