Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 101

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 101

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1215

GENERAL ADMINISTRATIVE DIVISION		)
Re		VAN TIEN NGUYEN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  The Hon RNJ Purvis AM QC, Deputy President

Date 7 February 2006

Place Sydney

Decision  The decision under review is set aside. The applications are referred back  
  to the Respondent for reconsideration.

[Sgd] The Hon RNJ Purvis AM QC
  Deputy President

CATCHWORDS

IMMIGRATION – subclass 309 provisional spouse visa – character test – provision of fraudulent death certificates – false and misleading information about deaths – mother not knowing whereabouts of two of her sons – harassment by police as to location of sons – sons no longer dependent on forming a part of visa application – character assessment – not reflect adversely on enduring moral qualities – application – dependent children – a son HIV positive – visa refused – the decision under review is set aside – the applications are referred back to the Respondent for reconsideration.

Migration Act 1958 – sections 234 and 501(1)

Ministerial Direction 21

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136

Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648

Chheng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 255

REASONS FOR DECISION

7 February 2006 The Hon RNJ Purvis AM QC
            Deputy President

the application

1. On 28 August 2004, an application made by Mr Van Tien Nguyen (the Applicant) for a subclass 309 provisional spouse visa for Ms Tran Thi Loan to enter Australia was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Respondent). Mr Nguyen has appealed to the Tribunal against such refusal. The ground for refusal of the application was that Ms Tran did not pass the character test provided for by section 501(1) of the Migration Act 1958 (“the Act”).  The statutory discretion available to the Respondent was not exercised in Ms Tran’s favour.

2.      Ms Tran is the wife of Mr Nguyen he having married her in Vietnam on 19 November 2000.  It was a second marriage for each of them.  At the time of her said marriage, Ms Tran had four children of her first marriage living with her.

3.      The reasons for the decision to not grant the visa to Ms Tran, amongst other matters, stated:

“…

18.I have taken into account the following matters in assessing the past general conduct of the Applicant:

(a)The Applicant provided fraudulent death certificates to the Tribunal and to the department;

(b)At an interview with this office in March 2004, the Applicant provided false and misleading information about the deaths of Giang and Binh, their funerals and commemoration;

(c)The Applicant maintained that Giang and Binh had died and the death certificates were genuine, even after clear evidence was presented that the claims and documents were fraudulent; and

(d)The Applicant failed to provide her current and former original household registers despite numerous requests to do so, which indicates that the Applicant has attempted to conceal information about her family composition.

…

24.The Applicant’s past and present conduct was for the purpose of applying for a permanent visa to Australia.  The Applicant has promised never to breach the law again.  However, in view of her most recent statements in regard to the whereabouts of Giang and Binh which I consider to be false and misleading I cannot be satisfied that the Applicant would not engage in similar conduct in Australia to obtain other benefits such as welfare payments.

25.…

26.I consider that the Australian community expects non-citizens to provide truthful information in their applications to enter Australia.  The Applicant has shown disregard for the laws of Australia and I find that the Australian community expects the Applicant’s visa application to be refused in these circumstances.

…”

the hearing

4.      At the hearing of this application, Mr Nguyen was represented by Mr Ray Turner, Solicitor and the Respondent by Mr Avinesh Chand, Solicitor of Messrs Clayton Utz, Lawyers.

5. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (as amended) were admitted into evidence and marked T1 to T35, T37 to T46.

6.      Other written material tendered on behalf of the parties was received as exhibits and marked accordingly, as follows:

Exhibit TD1: Section 37 Documents

Exhibit A:Family Household booklet referable to Tran Thi Loan, Tran Quoc Duy and Tran Quang Ninh

Exhibit B:Bundle of deposit receipts

Exhibit 1:Document headed “Explanation Report”, being a translation of T43/393

7.      Oral evidence was given by Mr Nguyen and Ms Tran through a Vietnamese interpreter, Ms Tran by telephone connection upon which they were each cross-examined.

chronology

8.      The legal representatives of each of the parties in their Statements of Facts and Contentions detailed a history of events significant to each of their cases.  Having reviewed the statements I am satisfied that a time line of relevant events not at issue is as follows:

Date	Event
1952, 13 January	Ms Tran Thi Loan was born in Vietnam;
1958, 2 October	Mr Nguyen Van Tien was born in Vietnam;
1975, 14 February	Ms Tran Thi Tai, daughter of Ms Tran, was born in Vietnam;
1983, 10 May	Mr Tran Quang Minh, son of Ms Tran, was born in Vietnam;
1983, 10 May	Mr Tran Phan Binh, son of Ms Tran, was born in Vietnam;
1985, 20 February	Mr Tran Chung Giang, son of Ms Tran, was born in Vietnam;
Mr Nguyen first enters Australia;
1985, 20 December	Mr Nguyen granted Australian citizenship;
1989, 24 December	Mr Tran Quoc Duy, son of Ms Tran, born in Vietnam;
1999, 12 February	Mr Nguyen meets Ms Tran while visiting in Vietnam;
2000, 19 May	Mr Nguyen divorced;
2000, 19 November	Ms Tran and Mr Nguyen marry in Vietnam;
2001, 4 September	Ms Tran lodges application for a subclass 309 spouse (provisional) visa.  Ms Tran’s four sons were secondary applicants to migrate with Ms Tran;
2002, 26 July	Ms Tran attends interview at office of Australian Consulate-General in Ho Chi Minh City;
2002, 18 September	Consulate-General informs Mr Tran Chung Giang that he does not meet health requirements;
2002, 14 October	Mr Nguyen informs Consulate-General that he will meet cost of Giang’s treatment;
2003 2 May	Decision to not waive health requirement;
2003, 16 May	Respondent refuses to grant a subclass 309 spouse (provisional) visa to Ms Tran and/or secondary applicant’s;
2003, 24 July	Application lodged with Migration Review Tribunal to review decision to refuse to grant visa;
Mr Nguyen’s solicitor forwards letter to Migration Review Tribunal stating that Giang died on 20 April 2003 and enclosing copy of death certificate;
2003, 14 November	Migration Review Tribunal remits applications to the Respondent;
2003, 12 December	Mr Nguyen’s solicitor forwards letter to Consulate-General stating that the son Binh died on 15 October 2003 and enclosing a death certificate;
2004, 2 March	Ms Tran and her son Minh attend interview with an officer of the Australian Consulate-General in Ho Chi Minh City;
2004,15 May	Ms Tran admits to falsely declaring the death of her two sons; and
2004, 28 August	Respondent refuses to grant subclass 309 spouse (provisional) visa to Ms Tran.

the issues

9.      The issues for determination in this application primarily relate to the character of Ms Tran.  Ms Tran’s credibility is a central issue.  In the event of her being found to be not of good character, it is necessary for the Tribunal to consider whether the discretionary considerations available to it should be exercised in her favour.

relevant legislation and provisions of ministerial direction

10. The provisions of the Act here relevant are:

“501 (1) Refusal or cancellation of visa on character grounds

(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(6)       For the purposes of this section a person does not pass the character test if:

…

(c)       having regard to either or both of the following:

(i)        …

(ii)       the persons past and present general conduct

…

the person is not of good character.

499 Minister may give directions

(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about

(a)       the performance of those functions; or

(b)the exercise of those powers.

(2A)     A person or body must comply with a direction under subsection (1).”

11.     The words “good character” as used in section 501 of the Act:

…should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as fact, where the latter is a review of subjective public opinion.

(See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94)

12.     It is not necessary for there to be a continuance of the incidence of general conduct.  It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying “the character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).

13.     The Ministerial Direction 21 (“the Direction”) sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test.  One factor to be taken into account, as here relevant, is whether the Visa Applicant has shown contempt or disregard for the law including Immigration Law (paragraph 1.9(a)(b)).  Thus Paragraph 1.9(b) requires consideration to be given to:

“Whether the non-citizen has in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.”

14. If the Tribunal is not satisfied that the Applicant passes the character test, the issue for determination, as already indicated above, is whether the decision of the Minister’s delegate be affirmed or set aside by exercise of the residual discretion under section 501(1) of the Act. In making this determination the Tribunal is to have regard to the abovementioned Direction and as here relevant to the following provision:

“PART 2 - EXERCISING THE DISCRETION

2.1If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24.  Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.”

15.     The three primary considerations that must be taken into account by decision-makers are: the protection of the Australian community, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

16. With reference to the protection of the Australian community the Direction provides that the factors relevant to an assessment of the level of risk to the community of the entering or continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as much as does the character issue, specifically refers to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.

17.     The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648; Chheng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 255). It is conceivable that documents can be false and information provided which is false without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information and as to whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a migration benefit or advantage. As was stated in Irving (supra) the moral qualities of a person are the factors to which attention is to be given.

relevant factual situation and findings of fact

18.     Mr Nguyen first returned to visit Vietnam in February 1999.  He was at that time still married to his first wife.  Mr Nguyen met Ms Tran, whom he had known as a child, she at that time being separated from her first husband and having four of her five children still living with her.

19.     In September 2000, after his divorce, Mr Nguyen again visited Vietnam especially he says to see Ms Tran.  They spent time together and each being then free to remarry, celebrated their wedding on 19 November 2000.  Mr Nguyen returned to Australia and his bakery business shortly after the wedding.  Ms Tran was at that time pregnant but suffered a miscarriage as a consequence of a motor cycle accident injury.  Thereafter, Mr Nguyen has lived and worked in his business, Ms Tran remaining with her family in Ho Chi Minh City.

20.     At the time of her marriage to Mr Nguyen and for a period thereafter, Ms Tran worked and lived with four of her five children.  Mr Nguyen made and makes regular telephone contact with her.  Mr Nguyen made and makes financial contributions towards maintaining his wife and her dependant children.  There was evidence tendered before the Tribunal to the effect that between February 2004 and January 2006, Mr Nguyen has remitted $25,367 to his wife in Vietnam.

21.     In September 2001, Ms Tran lodged her application for a spouse visa, including in it her four sons as secondary applicants.  In the course of the Respondent carrying out enquiries and medical examinations, it was learned that one of the children, Tran Chung Giang tested HIV positive.  The application for the visas was in due course refused, the health requirement not being waived.  Mr Nguyen appealed to the Migration Review Tribunal against the refusal and provided in support of the review application a letter from his then solicitor and a death certificate referrable to the son Giang, he allegedly having died on 20 April 2003.  On the basis of Giang no longer being a dependant of Ms Tran, the Migration Review Tribunal on 14 November 2003 remitted the application for reconsideration by the Respondent.  On 12 December 2003, solicitors acting on behalf of Mr Nguyen by their letter informed the Australian Consulate in Ho Chi Minh City of the death of another son of Ms Tran, Tran Phan Binh, on 15 October 2003.  Copies of what purported to be a death certificates of Giang and Binh were provided to the Migration Review Tribunal and the Consulate.

22.     On 2 March 2004, Ms Tran and her son Minh attended at the office of the Australian Consulate-General and when questioned maintained the representation as to the deaths of the sons and indeed embellished the purported details of their deaths and funeral arrangements.  Ms Tran had coached her younger son to give incorrect answers and information to questions asked.  The Consulate officer at the conclusion of the interview said to Ms Tran:

“…

Okay.  I don’t think you are telling me the truth.  I think you are lying about the death of Giang and [Binh] and have provided false death certificates.  Because you are lying I will consider refusing your application because you are not of good character and you will never get a visa for Australia.  So you should think about what you are saying and if you want to start telling the truth.

… your application had problems because one child didn’t meet health, so you got false death certificates for the children.  We know the children are still alive.

… you could have paid the police.

… you and Minh have provided completely different answers to questions about Binh and Giang’s death.  I consider that the death of two children is very tragic and both of you would be able to give the same answers about the death and the commemoration but you can’t.  I don’t believe that Binh and Giang are dead.  I think they are alive and I don’t even believe that all of those children are actually yours. …”

23.     On 7 April 2004, an officer of the Consulate-General wrote to Ms Tran largely reiterating what had been stated at the interview and indicating that the visa was liable to refusal.

24.     Ms Tran was requested to provide a response to the contentions of the officer contained in the April 2004 letter.  In the translation of her reply of the 15 May 2004, it is stated:

“…

For the personal reason I could not tell my children that my family case was refused as Giang’s diseases (was infected by HIV) so they think that everything is fine and do not think about the next happening.

Tran Phan Binh born in 1983 is the eldest child in my family.  He hopes that my family will be reside in Australia to settle the stable life and study.  Thus his hope is getting bigger and bigger everyday but I dared not to tell the truth that our visa application was refused.  I usually have to tell the lie when they question me about the visa application as I wish that they study with mind at ease.  I am afraid that if he know the truth of Giang the conflict will happen in my family the children will hate and forture [sic] each other.

By chance Binh knew the truth through the exchanged information between me and my husband.  Since then he was sad and fretty and changed his nature he left school and has [sic] girlfriend.  Although I advised him he has still been sad and left home without any news for more than 2 years.  I abandoned everything to look for him but I could not see him he also did not come back home any times.

Because of inferiority complex Giang left home and became a street urchin I went to look for him everywhere but I could not find him out after 4 months of his leaving home date one of his friend came to my house to announce me that my son – Giang died of drugs injection at the bridge pier.  At that time I thought that Giang’s friend might want to extort my money.  However I still looked for his house and when I found his address he died of HIV.

The police at my residence location usually inspect the number of people in a family.  I do not know how to tell them to get their understanding about my sons after many times of inspection they said that if they do not see them one time more they will remove their residence status.  At the same I was cheated all my goods lost as I went to look for my sons so I did not have time to trade.  The chance for reaction of my family is getting more difficult after many years of wait.  I was in crisis.  When I was in crisis and lost my control I took a reckless action that I went to the local power to declare on the death of my 2 sons with the thought that it will be less complicated if the Consulate officer questioned me about my family circumstance.

I know that I took a serious mistake I made the false statement in the last interview.  I learn that my action created much problem to your honoured officials.  The only thing I know is in my good faith that your honoured officers forgive and with humanity rescue for my family to be reunited.  My fault is great but I promise that I shall never breach it again.  The only purpose in my action is to desire to be reunited with my husband through a long time of longing for …”

25.     The visa application was refused.

26.     In her evidence before the Tribunal Ms Tran confirmed that it was when her son Binh overheard her telling Mr Nguyen of her visa application being refused on account of Giang being infected with AIDS that family discord occurred.  Binh assaulted Giang and in due course both sons left their mother’s house.  She says that she has not seen either of them since they left being informed by a one-time friend of Giang that he died of his disease.  She says she searched for and enquired of the whereabouts of the sons but to no avail.  Police authorities were harassing her as to the sons’ whereabouts.  She obtained false death certificates to satisfy the police and also provided the certificates in association with her visa application. She thought that she would be able to facilitate the granting of the visa if she omitted the two sons from her application.

27.     Ms Tran says that she now accepts that in fact her son Giang is dead.  As to Binh she does not know his whereabouts having searched for him but to no avail. She is afraid that the same fate may well have fallen upon him.  Neither son is now nor has been since 2003 a dependant of Ms Tran.  They represent no part of her present application.

28.     The difficulty experienced by Ms Tran arose shortly after and following upon the medical examination of Giang in about September 2002.  She then became aware of her son not being able to meet the Respondent’s health requirement.  She informed Mr Nguyen of this impediment, he offering to meet the cost of treatment.  She says that she personally was not able to tell her other children “because this was a sensitive issue”.  The children were, Binh in particular, looking forward to accompanying their mother to Australia.  She was afraid of letting them know the medical situation. Accidentally Binh overhead a telephone conversation between Ms Tran and Mr Nguyen. According to Ms Tran:

“He [Binh] became sad and upset. He changed his attitudes, gave up his study and a girlfriend. Despite the fact that I tried my best efforts to help and comfort Binh, he gave up every thing and left home. This has happened for more than two years but I am still unable to find his whereabouts. I gave up my business in order to find him but failed to find my son. He did not return home at all.

For his complex feeling and his scare of being isolated, he left home and I did not know where to find him though I tried my best. Four months after he left home, a friend of him came and told me that my son had been dead at the foot of a bridge due to a drug overdose. At that moment, I thought that his friend came to blackmail me. I, however, when to find another friend of my son. As I went to his friend’s place, I was told that he had been dead because of AIDS.

In the mean time, at the place where I live, the local police came many times for household check and they asked for my sons Binh and Giang. The police told me that they will remove my children’s names out of the household book.

At the same time, my business friends took away all the goods I asked them to keep for me while I was looking for my son.

The reunion of our family was getting harder and harder after years of waiting. My husband was getting sadder and sadder when he thought about our future. During this crisis time, I lost direction and in a moment of careless thinking, I went to the local authority and declared the death of my two sons hoping that I would have lss trouble when being interviewed by the Australian Immigration Officer.”

the false statements of ms tran and her character

29.     As is argued on behalf of Mr Nguyen at this time and at the time of the decision being handed down by the Migration Review Tribunal on 14 of November 2003, it may be concluded that neither Giang or Binh was and is a member of the family of Ms Tran.  Whether or not they were at the relevant times deceased, they had left their mother’s house not to be seen by her again.  They were each not a member of the family unit.  They had each turned 18 years of age and were not dependant upon their mother.  The Tribunal accepts this submission.

30. It is then contended that if this be so, the false and misleading statements as made by Ms Tran were not made referrable to a dependant or in connection with the entry of a dependent non-citizen into Australia and hence they do not come within the meaning of section 234 of the Act. This may or may not be so. However, false and misleading statements as to the deaths of the two sons were made in connection with an entry or proposed entry of non citizen, Ms Tran, into Australia and were associated with the application for a visa. The misconduct may well have constituted a breach of section 234 of the Act.

31. In the context of the character requirement of section 501 of the Act, Ms Tran told falsehoods and presented death certificates which were not based on her knowledge of the actual death of her two sons. Indeed as to one of the sons, she still held a belief that he might be alive. Nevertheless, she maintained the falsehoods. She did not resile from the untruths until shortly after she was interviewed by the officer of the Respondent.

32.     However, the Tribunal accepts the evidence of Ms Tran as to the situation in which she found herself when confronted by the police authorities.  She was being accused of failing to reveal the whereabouts of her two sons.  Further, she had suffered the distress of knowing that a son was infected with AIDS and, that another son had reacted violently and irrationally to being, he thought, deprived of his chance to better himself and his education in Australia and as a consequence had left the home not to return.  She abandoned her work for a time to search for her sons.  To no avail.

33.     I do not accept that the conduct of Ms Tran reveals a defect in her “enduring moral qualities”.  Nor do I accept that she sought to place her own personal interests above a wider duty to abide by the migration laws of Australia.  Honesty and integrity are undoubtedly requisite and necessary in the way in which a person deals with the immigration authorities.  However, an understanding of the motive for and intent of a falsehood is necessary.

34.     I do not consider that Ms Tran displayed a contempt or disregard for the law so as to cast an unassailable blemish upon her character.  Whilst she did seek to eliminate an impediment to her application – the son infected with AIDS – the certificate referrable to Binh whilst having the effect of eliminating him as a dependant secondary application should have had no effect upon her own application.

35.     In all the circumstances of this matter I am not satisfied that Ms Tran is a person not of good character.  Her untruths and presentation of false death certificates to the Respondent were incidental to the prime purpose; that is to satisfy and deflect the attention of the authorities.  They were used in relation to the migration application more to eliminate secondary applicants than advance her own suitability.  Indeed whilst she did not know, she nevertheless felt that her sons were likely to be deceased.  She maintained the falsehoods at the interview by necessity and to ensure consistency with earlier statements made by her.

relationship between mr nguyen and ms tran

36.     I am satisfied on the evidence before the Tribunal that the relationship between Mr Nguyen and Ms Tran is genuine.  Whilst it is true that Mr Nguyen has not returned to Vietnam to spend time with his wife since shortly after their marriage, he has maintained constant contact by telephone with her and has provided financial support for her and those children who are still residing with her.  One of the children is only 16 years of age and Ms Tran has had the continuing responsibility for his welfare.

37.     There is no reason to doubt the genuineness of the relationship and indeed Mr Nguyen in his evidence stressed the affection that he has for his wife.  He said that he loved her very much and that if she was not able to come to Australia he “would be sad, it would affect my spirit and my work”.  He further said that he would “not feel comfortable to continue his business”.  He looked forward to her amongst other activities looking after him.  He did say that in the event of Ms Tran not being able to enter Australia he would maintain his business, but train somebody to look after it whilst he went to visit his wife in Vietnam.

hardship upon mr nguyen

38.     In the event of a visa not being granted to Ms Tran, Mr Nguyen will experience hardship in not having his wife with him.  He has indicated a preparedness to not only look after his wife but the two children who remain secondary applicants.

discretionary considerations

39.     Whilst being of the opinion that Ms Tran satisfies the character test, the question of the exercise of the discretion available in the event of an adverse finding being made as to character was argued.  I should accordingly make some observations in relation to it.

40. On behalf of Mr Nguyen it was said that Ms Tran does not pose any threat to the Australian community and that that community if informed of all the facts in this case would not expect her application to be refused. Further, that it is in the best interests of the child Duy for there to be a grant of the visa. It is also said that the relationship between Mr Nguyen and Ms Tran is genuine and that he being an Australian citizen should be afforded the benefit of her company. In the course of his submissions made on behalf of Mr Nguyen, Mr Turner stressed the nature of the general conduct of Ms Tran that the only criticism made of her was referrable to the death certificates and the likely death of her sons and that otherwise her character is without blemish. She has admitted that she lied. Whilst not accepting the submission as to the false and misleading statements not being constrained by section 234 of the Act, I do not consider in the context of the relevant circumstances that the falsehoods are of such a nature as to be classified as serious. Let alone very serious. Thus the likelihood of such conduct being repeated is remote. The expectations of the Australian community are consistent with this situation. Whilst the child Duy has not lived in a household for any length of time with Mr Nguyen and was born and has been raised in Vietnam, education and job opportunities in Australia may well surpass those in Vietnam. There certainly is no adverse consequence in Dui being allowed to come to Australia. On the other hand, if a visa was to be refused, there would clearly be hardship experienced by Ms Tran.

41.     On behalf of the Respondent, Mr Chand contended that the conduct of Ms Tran was dishonest and that she intended to mislead local authorities and the Respondent.  She was not aware of the certain death of her sons.  She told untruths to the interviewing officer and maintained the falsehoods.  It is submitted that her conduct in this regard was such as to disqualify her on a discretionary ground.  It was submitted that Ms Tran had chosen to mislead the department believing that in doing so she would obtain an advantage visa-wise.  As already indicated in these reasons, the advantage she would obtain was the omitting of two secondary applicants.  The falsehoods upon which she relied, other than reflecting upon her character, did not advance her own personal suitability as a migrant.  It is true as Mr Chand submitted that Ms Tran presented false documents.  If the latter had not been the case the visa may well not have been refused and the present application would not have come on for hearing.  As already indicated there is minimal risk of recidivism. Whilst her conduct was as already indicated, it was not as maintained on behalf of the Respondent “calculated and deliberate over a period of 12 months”.  She had caused the death certificates to be brought into existence in order to appease the authorities.  It is true as submitted by Mr Chand that there would be a deterrent effect if it became known in the Vietnamese community that a visa had been refused to a lady who had not told the truth.  However, this application has to be considered on its own merits.  As I have already indicated I am not of the view that the Australian community generally would consider that a visa should be refused if the community was aware of all of the circumstances.  The message to others would be and should be one of “take care, be honest or else your application may well be prejudiced”.  It does not mean that it would automatically be refused.

decision

42.     As I have indicated earlier in these reasons, I am satisfied that Ms Tran is not a person who is not of good character.  Accordingly, the decision under review is to be set aside and the applications referred back to the Respondent for further consideration.  I have however given some consideration to the discretionary factors they having been argued at the hearing.  I am satisfied that even if a finding as to character had been made adverse to Ms Tran that the Tribunal would have exercised its discretion in her favour.  The relationship between she and Mr Nguyen is genuine; her husband, an Australian citizen.  The visa application is for a subclass 309 spouse (provisional) visa.

43.     For the reasons set forth above I am satisfied that the decision under review should be set aside.

44.     The decision under review is set aside.  The applications are referred back to the Respondent for reconsideration.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis AM QC, Deputy President

Signed:         Associate

Dates of Hearing  17 and 18 January 2006      
Date of Decision  7 February 2006

Representative for the Applicant             Mr R Turner, Solicitor

Representative for the Respondent          Mr A Chand, Clayton Utz