Nguyen and Minister for Immigration Multicultural and Indigenous Affairs

[2004] AATA 657

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 657

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   V2003/1363

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Ms TRAN HUYEN THI NGUYEN

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date24 June 2004

PlaceMelbourne

Decision The decision under review is affirmed.

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration - Spouse visa - whether of good character - unlawful stay in Australia - bogus documents – forged Australian passport – discretionary considerations – best interests of child outweighed - decision affirmed.

Migration Act 1958 - s501

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568

REASONS FOR DECISION

24 June 2004 Mr S P Estcourt QC., (Deputy President)           

1.      In this case the Tribunal finds in favour of the Minister and against Huyen Tran Nguyen’s application to set aside the decision to refuse to grant a visa to her husband Quang Hung Pham to allow him to join her and their daughter Julia in Australia. 

2. The reason for the Tribunal’s decision is that Mr Pham fails the character test set by s501 of the Migration Act 1958 (“the Act”), and after careful consideration the Tribunal has decided that this is not a case where it is appropriate to exercise the discretion the Tribunal has to authorise the grant of a visa even where a person has failed the character test. 

3.      The decision to refuse the visa in this case was made on the basis that the Minister’s delegate found that the visa applicant had shown disregard for Australian law by remaining unlawfully in Australia, and by fraudulently obtaining documents including a driver’s licence, birth certificate and an Australian passport in the name of Simon Son Nguyen.  The delegate also found that those documents were used to remain in Australia and to open a bank account in the name of Simon Nguyen. 

4.      The visa applicant first arrived in Australia on 28 July 1998 as the holder of a student visa.  On 24 September 1999 he applied for a further student visa but this application was refused.  He was issued a bridging visa which expired on 24 March 2000, but he subsequently remained in Australia unlawfully. 

5.      On 11 October 2001 the visa applicant was located by immigration officers and was taken into detention.  At that time it was found that he was in possession of fraudulently obtained documents including a driver’s licence, birth certificate and an Australian passport in the name of Simon Son Nguyen.

6.      The visa applicant claimed in evidence to the Tribunal that he only realised his passport was fraudulently obtained in October 2001 when he was taken to the Maribyrnong Immigration Detention Centre.  He claims he made a mistake that he greatly regrets and that he believed the Australian passport was genuine.  The following evidence given to the Tribunal is taken from a statutory declaration made by the visa applicant, which was taken into evidence as Exhibit 8:

“4.I made a mistake that I really regret.  The mistake was to trust a woman named Hanh, who I met in Sydney.  I came to Australia to study English when I was 20.  I became lonely and homesick.  I met Hanh one day in the Vietnamese precinct in Sydney.  She was Vietnamese and had sons my age and she was quite maternal towards me.  I welcomed her company and support.  She said she could arrange a convenient place for me to live, some work for her son in his car painting business and a place in an English College near where I lived.  I believed her.

5.I moved to the apartment she arranged and began working in her son’s car painting business.  I was looking forward to starting English classes as soon as possible.  But despite what she said, she did not arrange English classes for me.  I asked her several times when the English classes would begin and she would say that she would soon organise them.  In the beginning she said to me, settle in to your new apartment first.  I was getting more and more worried because I knew my visa would expire and I knew that I needed to be studying to keep my visa.  Finally, after I had asked her whether she had arranged the English classes so many times, she said that she couldn’t arrange English classes, because the college I had attended had removed me from its list.

6.She said she could arrange a visa for me, so that I could study, but that it would be expensive.  She said that she knew some people who could arrange a visa, passport and Australian citizenship for me if I paid $35,000.  She said that she knew other people who had paid money to these people and had received a visa and passport and had then been able to travel overseas and return to Australia.  This was a lot of money, but I thought that obtaining Australian citizenship would be very good so I decided to go ahead.  I felt that my parents would be very disappointed with me if I returned to Vietnam instead of staying in Australia to study.

7.I borrowed $20,000 from my parents and the rest of the money from friends and I paid the $35,000.  I never thought that for such a large amount of money I would be receiving fraudulent documents.  I am still paying this money back to those who lent it to me.  I have paid off half of it. (emphasis added)

8.Hanh took me to see the people who arranged the documents.  I was told where to sign the forms.  I did not have much understanding of law or migration issues and I trusted Hanh and her friends.  Hanh and her friends told me that I had to fill in these forms and pay the money if I wanted to stay in Australia.  They said it was my only chance.  I regret that I was not more careful.  I realise now that these people were operating a scam.

9.When I received the documents, I asked why they were in another name and was told that I needed to change my name and that it was legal to do so.  I used the documents to open a bank account, obtain a driver’s licence, obtain a fax file number and enrol to study in Australia.”

7.      The Tribunal does not accept the visa applicant’s evidence as to his state of mind concerning the unquestionably forged passport. 

8.      When cross-examined by Mr Brereton, counsel for the respondent, the visa applicant accepted that he knew the birth certificate he was given along with the passport belonged to someone else, and he knew that it was not his birth certificate.  He admitted that he knew that he wasn’t born in Australia, and that he knew that he wasn’t a citizen of Australia born in Australia, which was the basis upon which he enrolled at the Victoria University in December 2000 after moving from Sydney to Melbourne. 

9.      Moreover, the visa applicant appears to be a person of ordinary intelligence and the payment of such an enormous sum for a passport would be commonly understood as a payment for the purchase of forged documents on the black market and not for the payment of legitimate government fees.  The visa applicant’s claim that he did not think that for such a large amount of money he would be receiving fraudulent documents defies credulity, particularly when he knew the birth certificate accompanying the passport was another person’s birth certificate. 

10.     As the visa applicant’s claims to lawful residence in Australia fall with the rejection of his claim that he believed his passport was genuine, then it follows that he has also illegally overstayed in Australia from 25 March 2000 until 11 October 2001. 

11. It is unnecessary for the Tribunal to proceed to findings in relation to the other matters of past general conduct relied upon by the primary decision-maker, as causing the visa applicant to fail the character test, as the seriousness and nature of the visa applicant’s conduct in staying illegally in Australia having obtained a fraudulent passport is of such magnitude that the other matters considered by the original decision-maker are not necessary for the Tribunal to find that the visa applicant fails the character test. Niether would they add very much to the equation in the consideration of the various matters which go to the exercise of the Tribunal’s discretion under s501.

12.     Plainly the visa applicant fails the character test. 

13.     Turning to the exercise of the residual discretion, the Tribunal finds that the visa applicant’s migration misconduct is of the most serious kind and that whilst the risk of recidivism is probably not an important issue in this case, the principle of general deterrence looms large.  It is necessary to send a clear message to those who might obtain fraudulent Australian passports that they will not be granted visas when subsequently detected and detained.  The Australian community expects that such persons will not be allowed entry to Australia.

14. The third of what are referred to as “primary considerations” set out in Ministerial Direction No 21 issued under s499 of the Act for the guidance of decision makers in cases such as this, (including the Tribunal), is that of the best interests of any child or children of the person under consideration. It is necessary therefore to return to the history of this matter.

15.     The following facts are once again taken from the statutory declaration sworn by the visa applicant.  They are not in dispute:

“1.I met Tran, who is now my wife, in an English class at Victoria University in December 2000.  A few weeks after we met, we had lunch in the city and our relationship grew serious over the following months.  I was in the same English class as Tran at Victoria University of Technology.  I really liked Tran from the first time I met her, and I was excited to think about a future with her.  But there seemed no need to rush into marriage or living together.

2.I did not know that my time with Tran in Australia would be so limited; I did not know that a year after meeting her, I would have to leave Australia.  I could not foresee that we would have a child together, but that I would be absent at that special moment of birth.

…

15.After I had the opportunity to speak with Tran, I phoned Greg Hatzistavrou from DIMIA and apologised for not explaining my whole story to him the day before.  I said to him that I had wanted to talk to Tran first.  From that day until now, I have cooperated as much as I have been able to with DIMIA and I have been open and honest with DIMIA.

16.Tran and I returned to Vietnam together in December 2001.  We got married in January 2002 and we lived with my family in Vietnam.  Tran returned to Melbourne in February 2002 and I didn’t see her again until January 2004, when she returned to Vietnam with our daughter Julia.

17.In the times when Tran and I have been apart, we have spoken every day on the phone.  We are very close and I miss her so much.  I also miss my daughter.  When my daughter was here with me we bonded very well.  She was very comfortable with me.  I could pick her up and play with her and look after her.  She knows me.  She knows I am her father.  She looks a lot like me.

18.It is difficult to earn money in Vietnam to send to Australia because our currency is so low compared to the Australian dollar.  I have paid the $8,000 I owed to the Australian government for detention costs.  I am still paying money back to friends and family for the money I paid to get the fraudulent documents.  If I am allowed to live in Australia, I will work as a car painter and I will help Tran look after Julia.  I will provide financial support as well as domestic support to my wife and child.  If I am allowed to live in Australia, I will live with my wife, my daughter and my mother in law.  I am very sad that my wife is raising our daughter without me and that my wife is lonely and anxious without me.  The standard of education and health is so much better in Australia than in Vietnam. It is very hard to live in Vietnam and I am glad my daughter is an Australian citizen and can live in Australia, but I wish that I could be there.  If I do not receive the spouse visa, then my daughter will not have the opportunity to live with her happily married parents.”

16.     The following facts are taken from the statutory declaration of the review applicant, which was taken into evidence before the Tribunal as Exhibit 4.  They are not in dispute:

“1.I was born on 9 May 1982.  My father left my mother when I was four years old and I have never seen him since.  My mother re‑married in 1997.  In 1999, when I was 17, I came to Australia with my mother and stepfather.  I don’t know where he is.  At the time I met my husband, I was living with my mother and step‑father.  A few months later, my mother and step‑father separated and I haven’t seen my step‑father since.

2.The very first day I arrived in Australia, I enrolled in an English class at the Victorian University of Technology in Footscray (“VUT”).  I have studied there full time ever since except this semester because I visited my husband in Vietnam from 22 January 2004 until 4 May 2004.

3.I met my husband in an English class at VUT in December 2000.  We would talk to each other during class breaks and after a few weeks he asked me out.  We went out to lunch in the city and then sat on the banks of the Yarra River and talked.  We saw each other more and more, and though we did not move in together, we began a sexual relationship.  In September 2001, I found out I was pregnant.  I told Hung and, although we had not planned the pregnancy, we were both happy to have the child and we decided to get married.  We were planning to talk to my mother about the pregnancy and the marriage, but then Hung was taken to the Maribyrnong Immigration Detention Centre before we did so.

4.… I visited him each day in detention until we both went back to Vietnam in December 2001.  I stayed with him and his family in Vietnam and we married on 13 January 2002.  I returned to Australia in February 2002 and did not see my husband again until I visited him this year.

5.In the times that Hung has been in Vietnam and I have been in Australia, we have spoken on the phone and emailed each other regularly.  I gave birth to Julia on 10 May 2002.  I was very said that I gave birth to our daughter without my husband being there.  While I was at the hospital, a social worker there named Diane Neri was very kind to me.  She wrote a letter of support for Hung, which I have attached to this statement.

6.In Australia, I live with my mother.  She is very helpful to me in raising Julia.  She bathes, feeds, clothes and generally cares for Julia when I need to go out.  My mother studies English three days a week.  When I return to full time study next semester, my mother will look after Julia two days a week so that Julia only has to be in child-care three days a week.  My mother has no family in Australia apart from me and Julia.

7.I hope that my husband receives the spouse visa so that he can return to Australia and live with my mother and I and help care for Julia.  In Australia, I believe he will be able to find a job as a car painter, which he is very experienced at and that he will be able to provide financial support to Julia and I.  In Vietnam, my husband works as a car painter, but the wages are very low in Vietnam compared to Australia and he only ears $300 a month, so he can’t support us much.

8.I do not want to live in Vietnam.  My mother is in Melbourne and we are helpful and supportive to each other.  My mother in law in Vietnam is a farmer and does not have much time to help me with Julia.  I have worked very hard in my English classes in Australia and I want to continue to study here.  I would like to study accounting next semester.

9.The schools and health care in Vietnam are hopeless compared to in Australia.  I want my Australian daughter to enjoy the opportunities and standard of living that Australia has to offer.

10.While I was in Vietnam, my husband bonded very well with Julia.  He was incredibly kind and caring to her and to me.  I want my daughter to grow up knowing her father.  I have grown up without my father and I do not wish the same upon my daughter.”

17.     In respect of the primary consideration of the best interests of any child of the person under consideration, I direct myself in accordance with the comments in the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568.

18.     I find that the best interests of Julia, the daughter of the review applicant and the visa applicant lie in her remaining in Australia to enjoy the benefits of her Australian citizenship in the company of both her parents living together.  However, in my judgment the best interests of Julia are outweighed by the seriousness and nature of the visa applicant’s migration misconduct, the need for a general deterrent message to be sent to those who might conduct themselves in a like fashion and the expectations of the Australian community that persons who enter or remain in Australia having obtained fraudulent Australian passports will not be granted a visa to stay in or return to Australia after they have been detected and detained and required to leave the country.

19.     There are a number of what are referred to as “other” considerations set forth in Ministerial Direction No 21, which a proper exercise of discretion requires be taken into account.  Relevantly in this case they include the visa applicant’s genuine marriage to the review applicant who is an Australian citizen, and who had no knowledge of her husband’s character concern at the time she first entered into a relationship with him, the review applicant’s compassionate claims as the Australian partner of the visa applicant and the degree of hardship which will be caused to her and her daughter if the visa applicant is not allowed to join them in Australia.  However, even when these “other” considerations are coupled with the primary consideration of Julia’s bests interests, the primary consideration of the protection of the Australian public, involving both the aspects of the seriousness and nature of the conduct and the need for general deterrence, and the primary consideration of the expectations of the Australian community are not in this case outweighed to the extent that it would be appropriate to exercise the Tribunal’s discretion in the visa applicant’s favour.

20.     It follows from all that I have said that the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  28 May 2004
Date of Decision  24 June 2004
Counsel for the Applicant         Ms Georgina Costello
Solicitor for the Applicant          Ryan Carlisle Thomas
Counsel for the Respondent     Mr M Brereton
Solicitor for the Respondent     Australian Government Solicitor