Pham and Minister for Immigration and Citizenship

[2007] AATA 1837

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1837

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/0319

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		THI KIM HUONG PHAM

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date5 October 2007

PlaceMelbourne

Decision The decision under review should be set aside and in substitution IT IS DECIDED – The application is remitted to the decision-maker for reconsideration with a Direction that the visa sought not be refused pursuant to s 501 of the Migration Act 1958.

(Sgd)  John Handley
Senior Member

  

MIGRATION – application by wife to sponsor visa applicant husband to enter Australia – previous residence in Australia unlawful – used acquired false identity – visa applicant then a young man – he is now older, mature, of good character, working, married and a father – wife and child Australian citizens – Direction 21 – discretion exercised favourably – decision set aside

Migration Act 1958 (Cth) s 235(3), s 499(2A), s 501 and s 501(6)(c)(ii),

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277

Re Li and Minister For Immigration and Citizenship [2007] AATA 1718

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

REASONS FOR DECISION

5 October 2007   Mr John Handley, Senior Member

1.      The applicant Thi Kim Huong Pham (the applicant) applies as a sponsor and married partner of Vanh Canh Dong (Dong) who has been refused a visa to enter Australia.

2.      Dong was issued with a TU560 student visa on 31 March 1998 which permitted him to enter Australia.  He was then a resident and citizen of Vietnam.  He arrived in Australia on 12 April 1998 pursuant to that visa.  It was due to expire in October 1998.  Dong did not then leave Australia.  Until he was located by Immigration officials on 12 February 2004, he had:

·     Unlawfully remained in Australia.  In evidence he said he did not know whether his student visa had expired or had been cancelled.  (The Statement of Reasons completed by a Delegate of the Minister on 1 January 2007 records that the student visa ceased (T‑docs, p24, paragraph 3).

·     Worked illegally (save for a few weeks where he attended a school), that is he did not have a visa or any other authority or permission to work in Australia.

·     Acquired a false Australian passport, a false driver’s licence, a forged birth certificate and acquired a bank account.  Those documents recorded him by the name of Duc Huy Nguyen.  Those documents were acquired by him for the sum of $6000 from a person who approached him in Footscray.

·     Used monies obtained from employment – together with a credit card also issued pursuant to the bank account which had been obtained (refer above) ‑ to purchase goods, furniture, a motor car and place a deposit on a home in suburban Melbourne.

·     Met his current wife, the applicant in these proceedings, and lived with her as defacto partner for some years but did not ever inform her of his false identity.  That is to say, she always knew him as the person Nguyen.  It was not until he was located and apprehended by Immigration officials on 12 February 2004, that she learnt of his true identity.

3.      In his application for migration to Australia (which gave rise to these proceedings) Dong denied that he had ever had a visa which had been cancelled (T‑docs, p73).  That disclosure may be excused, having regard to his uncertainty as to whether his student visa had ever been cancelled (refer above), however at page 88 of his application for a visa to enter Australia, he denied that he had ever been removed or deported from any country (including Australia), and also denied that he had been excluded and or asked to leave any country (including Australia).  In that application, which he signed and completed on 21 April 2005, Dong declared that the information supplied was complete, correct and up to date in every detail and also acknowledged that if he gave false or misleading information (his) application may be refused . . . (p95).

4.      The Statement of Reasons completed by a delegate of the Minister record that the application for the combined partner (provisional) (class UF) and partner (migrant) (class BC) visa for which Dong applied to Australian officials in Hanoi in April 2005 was refused because he did not pass the character test pursuant to s 501 of the Migration Act 1958 (the Act) and more specifically by regard to his past and present general conduct (s 501(6)(c)(ii).  Having made that finding, the delegate then exercised the discretion required by Ministerial Direction No 21 and on balance decided that the serious nature of Dong’s past and present general conduct outweighed any disadvantage that may be caused to him or the applicant and their daughter (p34, para 60).  Accordingly the discretion was exercised against granting of the visa for which application had been made.  The applicant as the wife of Dong applies to review that decision in her capacity as his sponsor.  She and their infant daughter are Australian citizens and reside in Melbourne.

5.      By reason of the evidence at the hearing and from the applicant and Dong and by regard to the documents lodged and the submissions made it was contended that the applicant did not fail the character test but if such a decision was made it was submitted that the discretion available under Direction 21 should be exercised favourably, thereby permitting Dong to enter Australia.

6.      It was submitted that Dong:

·     Paid income tax on all monies earned in employment.

·     Within a short period of being apprehended, admitted his true identity and demonstrated remorse.

·     Voluntarily left Australia, paid his own return air fare, was not regarded as a threat or a risk and was permitted to travel to Vietnam unaccompanied.

·     Did not obtain his false identity for any criminal or illegal activity in Australia, nor was there any evidence, nor was it alleged, that he entered into or conducted such activities in Australia.

·     Repatriated monies earned in Australia to his parents in Vietnam.

·     Apologised to Immigration officials for not returning at the expiration of his student visa and apologised also for inconvenience caused to Australian authorities.

7.      In July 2004, the applicant travelled to Vietnam where she then married Dong.  She returned later that year and on 17 April 2005 their child, Vivian was born in Australia.  The marriage was genuinely entered into by the applicant and Dong and the almost daily communication between Dong and the applicant by either telephone or internet demonstrates a continuing and loving commitment to each other.

direction 21 – part 1

8.      Section 495(2A) of the Act compels compliance with Direction 21.  Part 1, contains criteria that must be considered when deciding whether a visa applicant satisfies the character test; that is, whether the person is of good character (refer s 501 of the Act). Section 501(6)(c)(ii), relevantly, applies, as does paragraphs 1.9 and 1.11 of Part 1.

is the applicant of good character

9.      Shortly after being apprehended on 12 February 2004, Dong readily admitted that he had remained in Australia illegally, that he had worked illegally and had largely been able to avoid detection by reason of him having acquired, for the sum of $6000, an identity evidenced by an Australian Passport, a driver’s licence, a birth certificate and a bank account all in a false name.  Those admissions initially to Immigration officials and in his evidence in these proceedings are to his credit.  He volunteered to leave Australia and met the cost of return air fare to Vietnam.  He was not regarded as a threat or a risk and was permitted to travel unaccompanied.  There was no evidence that his false identity was undertaken to permit him to engage in illegal or criminal activities in Australia.  Monies earned in Australia were repatriated to his parents in Vietnam.  I accept that he has a loving and caring relationship with the applicant and his daughter and communicates regularly.  Since returning to Vietnam, Dong has obtained salaried employment and he lives with, and cares for his parents.  A reference completed by the Buddhist Nun in charge of the Huong Nghiem Pagoda in Hai Phong recorded in a reference at page 169/170 of the T‑documents that Dong continues to express regret about his conduct in Australia.

10.     All of the above points to evidence of recent good conduct indicating reform (refer paragraph 1.11 of Direction 21).

11.     However Dong’s past conduct in Australia is in my view of sufficient severity and magnitude to cause a finding to be made that the he is not of good character.  In making this finding I am satisfied that within a few weeks of arriving on a student visa, he engaged in unlawful activity by residing here, not as a student, but as an employed person without a visa in contravention of s 235(3) of the Act..  He would have known that the student visa would have expired in October 1998 but thereafter continued to work and reside in Australia illegally and under a false identity.  That identity was obtained by him spending $6000 to acquire documents which would permit him to represent to employers that he was a citizen.  By his false name and residing at premises not known to Immigration officials he was not readily able to be located and apprehended.  He did not ever seek permission from Immigration officials in Australia to extend or obtain alternative visas to permit him to remain here.  He did not ever admit to the applicant with whom he was enjoying a defacto relationship that he was residing in Australia illegally under a false identity until he was apprehended.  The use and possession of the documents giving him a false identity probably contravened a number of Federal and State laws.

12.     I acknowledge that the concept of good character is not concerned with whether an applicant for entry meets the highest standards of integrity and I also acknowledge that the concept is a less exacting standard.  However the standard is concerned with an enquiry into an applicant’s character to determine whether that person’s enduring moral qualities (are) so deficient as to show it is for the public good to refuse entry.  Deficiencies in enduring moral qualities may cause a conclusion that a person is not of good character (where the person seeks long term entry) (refer Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277).

13.     Viewed objectively, Dong’s activities in Australia, in my view indicate a contempt for the laws of Australia and for the sovereignty of Australia to determine its residents.  The evidence of Dong’s past conduct in Australia is, in my view of sufficient weight and seriousness to overwhelm (although marginally only) the evidence of his good qualities (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780).

14.     This decision has been difficult.  Past and present serious conduct must be examined and balanced.  There is much pointing to evidence of recent good conduct indicating reform of character.  But I cannot, at this first stage of a two stage process be fully persuaded that Dong has reformed (refer Direction para 1.11).

15.     It is for these reasons that I am satisfied that Dong does not pass the character test.

direction 21 part 2 ‑ discretion

16.     Part 2 of Direction 21 is applied if a person does not satisfy the character test.  It compels that three primary considerations are to be regarded in the balancing exercise inherent in the exercise of the discretion.  The primary considerations are:

(a)the protection of the Australian community; and members of the community;

(b)the expectations of the Australian community;

(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.

17.     The first of the primary considerations has three sub‑parts namely,

(i)an examination of the seriousness and nature of the conduct;

(ii)whether there is any likelihood that the conduct may be repeated including any risk of recidivism; and

(iii)whether visa refusal would prevent, as a general deterrence, the commission of like offences by other persons.

18.     Under the first sub‑part, paragraph 2.6 (c) regards the presenting of false or forged documents or making a false or misleading statement in connection with entry or stay in Australia to be a serious crime against the Act.  It therefore follows that the conduct of Dong in paying monies to acquire a false Australian Passport, a driver’s licence, a birth certificate and a bank account with a credit card constitutes a serious crime against the Act.

19.     Those documents would have been used for a combination of reasons.  The falsity of the person recorded in those documents would have caused difficulty in Dong being located by reason of him having illegally remained in Australia beyond the expiration, cancellation or cessation of his student visa.  Indeed I am satisfied that the purpose of acquiring those documents and using them was for the purposes of evading detection by Immigration officials.  Those documents would have also been used in connection with obtaining employment.  It was put that Dong was of good character because he paid tax.  The tax would have been withdrawn from his salary by his employers from time to time as they were obliged to do.  The taxation would have been paid after declarations had been completed by him under his false identity in order that the employer might be permitted to engage him and to complete its returns to other government agencies.  The false documents would have also been used by him in connection with other transactions and activities of daily living and therefore demonstrated a continued pattern of disregard for Australia’s migration laws.  There is nothing to indicate that Dong ever intended to surrender himself or volunteer to Immigration officials that he was living in Australia illegally.  Indeed he had not told the applicant with whom he was enjoying a defacto relationship that he was an illegal non‑citizen.

20.     The presenting of false and forged documents by Dong in connection with him staying in Australia is a serious crime under paragraph 2.6(c) and I do attach considerable weight to this behaviour.

21.     The application to enter Australia, being the genesis for this review, was completed by the applicant’s solicitor in Australia and forwarded to Dong in Vietnam to sign and make his declaration.  Dong was careless and did not notice the errors (refer earlier) which he should have corrected.  He did, at least, identify himself honestly and the errors or omissions would have been – and were – easily discovered by Immigration officials.  He, strictly, probably did make a false and misleading statement in connection with entry or staying in Australia but in context, I attach little weight to the errors found in the application for entry.

22.     The second sub‑paragraph under this part requires a consideration of whether there is any likelihood that the conduct may be repeated, including the risk of recidivism.

23.     Dong presently resides in Vietnam and his previous behaviour would only be repeated with respect to entry to Australia if he were to obtain false documents and use them for that purpose.  I think that that is unlikely.  He was 18 years of age when he commenced his illegal residence in Australia but he is now 29 years of age, is working full‑time, is married and is a father.  The impression I have of him, having heard his evidence at the hearing is of a person who is now more mature and more sensible.  The risk of recidivism cannot be totally excluded but I think the risk of it is minimal.  The criteria at paragraph 2.10(a) and (b) do not apply.  Sub-paragraph (c), I think, has some application to the extent that rehabilitation was demonstrated by acknowledging the error of his previous conduct and voluntarily leaving Australia, at his own expense.  His conduct in Vietnam, subsequent to his return, has been favourably viewed by local Nuns.  This would also suggest he has rehabilitated.

24.     Consideration must also be given under the third part as to whether visa refusal would act as a deterrence to other persons or inhibit other persons from committing like offences.  It is impossible of course to determine this issue with any degree of certainty.  The applicant remains in Australia and does have a circle of friends and work colleagues with whom it would be likely she would discuss her present circumstances.  It would be likely that persons would become aware that Dong has had his present visa application refused by reason of his previous conduct in Australia.  In those circumstances persons would understand that violation of migration laws will not forever go undetected and the consequence is likely to be detection, apprehension, detention and removal from Australia if similar conduct is repeated.  Similarly, persons who have offended against Australian migration laws may find it difficult to return here.  In those circumstances it would be expected that persons would be deterred or inhibited against committing offences similar to that committed by Dong.

25.     For the above reasons I would attach some but minimal weight to this factor because I am satisfied that refusal of the visa sought by Dong would act to deter other persons from committing similar or like offences.

expectations of the australian community

26.     This is the second of the primary considerations to which analysis is compelled under Direction 21.  Paragraph 2.12 records that the Australian community expects non‑citizens to obey Australian laws and where a non‑citizen has breached those laws it may be appropriate to refuse a visa application made by that person.

27.     In Re Li and Minister For Immigration and Citizenship [2007] AATA 1718 (Li), Deputy President Walker recorded a number of paragraphs giving an historical, economic and legal analysis of the right of every sovereign State to regulate persons who apply to enter and who, as non‑citizens, reside in that State.  Whilst regulation of those objectives would be undertaken by government and its agencies it is my view that Australian citizens would have no quarrel with a regime of entry and residence of non‑citizens being required to honour and obey domestic laws.  Migration in my view occurs not as of right but by permission and then on certain conditions.  Dong breached those conditions and did subvert Australia’s migration laws for approximately five and a half years.  With his history it is my view that some Australian citizens would be unimpressed by him being granted a visa to return to Australia.  However, there would be a considerable proportion of Australian citizens who would be fair minded, compassionate and upon full knowledge of the reasons for his past conduct and knowledge of present circumstances would conclude that there is not a significant risk that Dong would breach (the) trust inherent in permitting him to return or reside here (refer paragraph 2.12).  Whilst I do have due regard to the Government’s view of this criteria, I think, on balance, no adverse weight should be attached to Dong.

the best interests of the child

28.     This is the last of the primary considerations and is a matter to which considerable attention should be devoted and to which it is my view that the Australian community would also expect considerable attention.

29.     The applicant and Dong are the parents of Vivian who is now two years and five months of age.  She and her mother are both Australian citizens.  If the application by Dong for a visa to return to Australia is refused, Vivian will be denied the opportunity to have a full‑time relationship with both her mother and her father.  Paragraph 2.15 of Direction 21 records that it is in the best interests of children to be with their parents.  I agree.  But that cannot be achieved unless the visa for which Dong has applied is granted thereby permitting him to return to Australia or, the applicant and Vivian travel to Vietnam and live with him which the applicant indicated she would do if the visa application made by Dong is refused.

30.     I am conscious that the applicant and Vivian are both Australian citizens, they enjoy and are entitled to exploit the benefits, lifestyle and freedom of living here.  She and Vivian are entitled to a standard of health care and welfare opportunities almost certainly not existing in Vietnam.  As Vivian approaches school age she will have an opportunity to enjoy a level of education and educational opportunities not available in Vietnam.

31.     Alternatively, the applicant and Vivian do not speak English and returning to Vietnam will not present any language difficulties.  If that were to occur the applicant and Vivian would be reunited with Dong, would live with him and the family unit would therefore be established.  Vivian does not yet attend school and does not have a circle of friends from which she would be denied contact if she returned with the applicant to Vietnam.

32.     I do attach considerable weight to this factor and I am satisfied that it would be in Vivian’s best interest to be with both of her parents.  The criteria at paragraph 2.15(a) and (b) do not apply.  With regard to the criteria at paragraph 2.16 I am satisfied that Dong does love and does miss the absence of his contact with Vivian.  Reunion with her would satisfy the objective of paragraph 2.15, namely that it is in the interests of a child to be with both parents.  The denial of that relationship would likely cause an adverse effect on Vivian.  There is no evidence that Dong’s prior conduct has had any adverse impact on Vivian.  The criteria at paragraph 2.16(g), (h) and (i) have been dealt with earlier.  There is no evidence of any cultural barrier (paragraph 2.16(j)) facing Vivian in Vietnam but there is also no evidence of relative ease of integration, she being an Australian citizen who has lived here all of her life.  On balance I think it would be in Vivian’s interests for Dong to be permitted to return to Australia.

other considerations

33.With respect to the criteria at paragraph 2.17, I am satisfied that:

(a)there has been considerable disruption to Dong’s family which is not in the interests of Vivian, the applicant or him.

(b)the marriage between Dong and the applicant was genuine, they do have a loving relationship and they should be entitled to enjoy that relationship.  Whilst the applicant did not know that Dong was an illegal non‑citizen before his apprehension, she did later marry him, in Vietnam.  It was not, in my view a contrivance.  This review allowed the opportunity to hear Dong and the applicant, read the letters he had written to her and observe photographs of him interacting with Vivian and the applicant in Vietnam (which I acknowledge was not available to the Minister’s delegate).  I am satisfied and confident that he is committed to the relationship with the applicant and Vivian and that commitment is best exercised in Australia.

(c)there would be hardship if Dong is not permitted to return.  Whilst the applicant and Vivian could visit him in Vietnam, it would be irregular and subject to saving monies from part‑time employment to meet the cost of travel.  If Dong lived here he would be likely to obtain work and provide for his dependent family.  He would earn income at a much greater level than he could earn in Vietnam.

(d)The parents of the applicant and Dong reside in Vietnam.  Dong has family here, namely the applicant and his daughter.  It would be very unfair for them to relinquish their residence in Australia to reside with him in Vietnam.

(e), (f) and (g)    Dong is and has not sought to evade any legal matter or liability here or in Vietnam nor is there any legal matter or liability to which he is conditionally subject.

(h)The evidence of rehabilitation and good conduct commenced during detention in Australia by admission of his identity and his immigration offences, voluntarily leaving Australia at his own expense, obtaining full time work and providing for his parents (as he did whilst in Australia) and his many expressions of regret and apology for his previous conduct.  His marriage, becoming a father, being engaged in full time work in Vietnam and increased age are also an indication of greater maturity permitting a degree of confidence in his rehabilitation.  He did not commit, nor was it alleged, he committed any criminal offences in Australia.

(i) and (j)Dong applies for a permanent visa for the purposes referred to earlier in these reasons.  I doubt that any decision‑maker could ever be fully persuaded of a visa applicant’s reform (refer para 14 earlier) but under this part I think it can be found that Dong, now, has moral qualities which are enduring (refer Goldie, earlier at para 12).

(k)it is likely Dong was aware or was advised that he was subject to deportation when apprehended in 2004.  He volunteered to return to Vietnam at his own expense.  The Commonwealth did not incur any cost by him opposing the potential decision to be removed.

conclusion

34.     Without overlooking the previous conduct and the weight that should be attached to it, on balance I think the discretion under Direction 21 Part 2 should be exercised favourably.  Dong is now an older and a more mature person.  He is now married and is a parent.  I do not agree with the conclusion expressed by the Minister’s delegate that past and present general conduct outweighs any disadvantage that may be caused to Dong, the applicant and Vivian.  I think the visa refusal would cause a considerable and harsh disadvantage.  I am not satisfied his previous behaviour would be repeated.  I am satisfied he understands the serious nature of his prior conduct and has demonstrated genuine remorse. 

35.     The decision under review should be set aside and in substitution it is decided the application to sponsor Dong should be approved and his application to migrate to Australia should be permitted.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:    Grace Carney, Personal Assistant

Date of Hearing  7 September 2007
Date of Decision  5 October 2007
Counsel for the Applicant         Mr A Kronh
Solicitor for the Applicant          Koenig & Simons Solicitors
Solicitor for the Respondent     Ms T Van Duyn, Clayton Utz