Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 766

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 766

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2004/66

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KIM BUN CHOR

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C, Deputy President

Date21 July 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] The Hon R N J Purvis Q.C, Deputy President

CATCHWORDS

IMMIGRATION – spouse visa – Visa Applicant not of good character – false and misleading statements – provision of bogus documents – best interests of children – need to protect Australian community – issue of deterrence – residual discretion not employed – decision affirmed

REASONS FOR DECISION

21 July 2004 The Hon R N J Purvis Q.C, Deputy President   

THE APPLICATION

1.      This is an application by Mr Kim Bun Chor (“the Applicant”) seeking review by the Tribunal of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 1 December 2003.  By such decision the Respondent refused to grant to Ms Mach Nhep (“the Visa Applicant”), the wife of the Applicant, a subclass 309 visa.

2.      The Respondent determined that the Visa Applicant was not of good character and declined to exercise the available discretion in her favour.

3.      In its reasons for refusing the visa the Respondent, inter alia, stated by way of background:

“1.       The applicant lodged a successful visa application and travelled to Australia under the false identity of NOUN Line (01/01/1973).  The applicant declared she was not known by any other name and was married to Francis NUBERON with two children from the relationship.

2.        The supporting evidence of the applicant’s identity as NOUN Line was extensive.  The applicant provided a marriage certificate, airline tickets, a visa application to Thailand, Cambodian passport … Cambodian identity card … and wedding photographs bearing the applicant with Mr Nuberon.

3.        During the processing of her visitor visa the applicant presented to the Embassy on two separate occasions impersonating NOUN Line and actively misled the interviewing officer as to her true identity.

4.        The applicant travelled to and arrived in Australia on 12 December 1999 using an improperly obtained Cambodian passport … under the false identity of NOUN Line

…

6.        The applicant’s visa expired on 27 December 1999 and she remained unlawfully in Australia for more than three years before departing on 30 March 2003.

…

11.      On 2 April 2003 the applicant lodged an application under the identity of NHEP Mach … for a subclass 309 Spouse visa at the Australian Embassy, Phnom Penh sponsored by CHOR Kim Bun.  The applicant falsely declared at question 14 in the application that she had not been known by any other name, and also falsely declared at question 9 that she had not previously travelled to Australia.”

4.      In this matter there is no denial by the Visa Applicant or on her behalf as to the correctness of the above recitation of the factual background.  The Applicant does not seek to put at issue the Respondent’s finding as to the Visa Applicant being not of good character.  It is however maintained that relevant factors exist which mean that the discretion of the Respondent and now the Tribunal should be so exercised in the Visa Applicant’s favour.

5.      Thus the issue for determination in this application is as to whether the primary considerations and other considerations detailed by the Ministerial Direction 21 (“the Direction”) should be found in favour of the Visa Applicant.

THE HEARING

6.      At the hearing of the application the Applicant was represented by Mr Peter Bollard, solicitor, and the Respondent by Mr Murray Allatt, a solicitor employed by the Australian Government Solicitor.

7. There was introduced into evidence the documents lodged on behalf of the Respondent pursuant to section 37 of the Administrative AppealsTribunal Act 1975 (as amended) marked T1-T17.  Written material tendered on behalf of the Applicant was admitted as exhibits and marked accordingly:

Exhibits	Description of Exhibits	Date of Exhibits
A	Reference for Applicant by his employer and copy of Australian Citizenship Certificate	15 June 2004
B	Certificate from Dr MA IM Siphal, physician in Takhmau, Chey Chomnas Hospital of the Visa Applicant’s daughter’s medical record	10 June 2004
C	Copies of photos of Visa Applicant’s daughter	Undated
D	Applicant’s Statutory Declaration	28 April 2004
E	Summary of Witness Statement by the Visa Applicant	Undated
F	Travel advice for Cambodia by Dept. of Foreign Affairs	4 March 2004
G	Bundle of documents attached to Applicant’s representative’s letter of 30 April 2004 items 5 to 13	30 April 2004

8.      Oral evidence by means of an interpreter was given by both the Applicant and Visa Applicant (a telephone connection with Cambodia) upon which they were each cross-examined.

CHRONOLOGY OF RELEVANT EVENTS

9.      A short chronology of relevant facts not in dispute between the parties, is as follows:

DateEvent

1960, 12 April           Applicant born in Cambodia

1975, 5 MayVisa Applicant born in Cambodia

1982, 19 April           Applicant arrives in Australia as permanent resident

1985, 21 March        Applicant obtains Australian citizenship

1991, 20 January      Applicant’s son David born

25 JuneApplicant marries his first wife

1996, 12 July           Applicant and first wife divorce

1999, 16 November   Visa Applicant lodges visitor visa application

1999, 12 December   Visa Applicant arrives in Australia on visitor visa

2000, January          Applicant and Visa Applicant first meet

FebruaryApplicant and Visa Applicant commenced a relationship

2002, 15 May           Applicant and Visa Applicant marry

14 December   A child born to Applicant and Visa Applicant

2003, 30 March        Visa Applicant departs Australia

2 AprilVisa Applicant lodges spouse visa application

1 DecemberDelegate’s decision refusing spouse visa

LEGAL PROVISIONS AND DIRECTION

10. The character of the Visa Applicant within the meaning of section 501 of the Migration Act 1958 (“the Act”) is not at issue in these proceedings. It is however, desirable for the Tribunal to make its own finding as to character and then to assess the weight to be given to the discretionary factors detailed in the Direction.

11.     The relevant statutory provisions are:

“501     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 of both of the following

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

The person is not of good character”

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

13.     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).

14.     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 (para 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.”

15. If the Tribunal is not satisfied that the Visa 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 above Direction and as here relevant to the following provisions:

“PART 2 – EXERCISING THE DISCRETION

2.1      If 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

2.2      The 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.”

16.     The three primary considerations that must be taken into account by decision-makers are the protection of the Australian community and members of it, 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.

17. 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 a non-citizen entering or continuing their stay 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 with the character issue, makes specific reference 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.

18.     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). It is important to note the emphasis placed on “the observance of truth”.  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 benefit or advantage.

FINDINGS OF FACT – THE FACTUAL SITUATION

19.     On the basis of the evidence placed before the Tribunal I am satisfied that the factual situation relevant to the present application is as follows:

20.     The Visa Applicant was born in Cambodia on 5 May 1975.  She seemingly is one of four daughters born to her parents, two of whom have remained living in Cambodia, the other now residing with her husband in Australia.  The Visa Applicant is, at the time of this application, living in Cambodia with her mother, her elder sister and the sister’s family as well as her daughter Vivien Chor born of her relationship with the Applicant.

21.     It was in November 1999 that the Visa Applicant lodged an application with the Respondent in Cambodia seeking a visitor’s visa to enter Australia.  She says that she wanted to visit her sister who was then living in Australia with her family and had become an Australian citizen.  The Visa Applicant says that she was apprehensive about being granted a visa if she applied as a single women and in her own name.  At the suggestion of a friend Mrs Noun Line and with the knowledge, consent and connivance of the friend’s husband Mr Francis Laurent Nuberon, the Visa Applicant caused an application for a visa to be filled out in the name of her friend with she, the Visa Applicant, as the wife of the friend’s husband.  A false passport with the Visa Applicant’s photograph in it in the friend’s name, a false marriage certificate, false particulars as to the Visa Applicant’s family and supposed children and a false Cambodian identification card were all presented to the Respondent.

22.     The Visa Applicant was then 24 years of age.  She was not a child.  She gave as her reasons for practising fraud and deception that she wanted to see her sister and “have fun”.  These explanations hardly warrant a benevolent attitude being taken to her conduct.

23.     The visitor’s visa granted to the Visa Applicant was for a period up until 21 December 1999.  She had on her journey to Australia been accompanied by her “husband” Mr Nuberon.  Shortly after their arrival Mr Nuberon left the country.  The Visa Applicant remained being provided by Mr Nuberon with her false passport and return airline ticket in her false name.

24.     Instead of leaving Australia prior to the expiration of her visa she remained.  She met the Applicant in the month following her arrival and after her visa had expired.  They began living together in February 2000, married in May 2002 and had a child in December 2002.  She left Australia with the child in March 2003 then returning to Cambodia.  She had by this time overstayed her 1999 visa by more than three years.

25.     The Applicant is 15 years older than the Visa Applicant.  He arrived in Australia in 1982 as a permanent resident, obtaining Australian citizenship in 1985.  He entered into a relationship with his first wife and was married to her in June 1991 a son David Chor having been born to them in January 1991.  The Applicant and his first wife were divorced in July 1996.

26.     After leaving Australia and in April 2003 the Visa Applicant lodged the application for the subject visa in Phnom Penh, Cambodia.  She and the Applicant had discussed the lodging of this application before she left Australia and had enlisted the assistance of a Mr X L Mai in preparing the documentation.  Mr Mai was seemingly fluent in the Vietnamese language but not in the Cambodian language.  The Visa Applicant is fluent only in the Vietnamese language.  The Applicant is fluent in the Vietnamese and the Cambodian language.   Neither the Visa Applicant or the Applicant are fluent in English. 

27.     The visa application form so completed and lodged with the Respondent in Phnom Penh contained a number of misrepresentations and false statements.  The Visa Applicant declared that she had not previously travelled to Australia and that she had not been known by any other name.  She says that she narrated facts through her husband – he speaking Vietnamese – to Mr Mai and on his completing the form, she at his request signed it without having had it read over to her in her own language.  The husband, as has been mentioned was present, whilst the form was being completed and signed.

28.     On the basis of the evidence before the Tribunal there is no acceptable reason given as to why she signed the application form without reading it or having it read over to her and without ensuring that the statements and answers contained in it were true.  She said she had confidence in Mr Mai.  Mr Mai was not a migration agent and did not, on the evidence, have the document read over to the Visa Applicant.  If this be so, he acted recklessly and should not have been entrusted with the responsibility.  On the other hand, the Visa Applicant may have been well aware of the contents of her application.  It is more likely the latter was so.

29.     It is said, on behalf of the Visa Applicant, that the Respondent was aware, by reason of a statement given to the Respondent before she left Australia, that she had entered Australia under a false name and with a false passport.  To an extent this is true.  But in a statutory declaration made by the Visa Applicant on 5 March 2003, three months before she left Australia, she merely stated, inter alia;

“… I wished to go to Australia to visit my sister there but did not know what to do since I had failed in my previous application for Australia Visitor Visa… .”

30.     In her evidence before the Tribunal the Visa Applicant denied ever having made a “previous application” to enter Australia.  By this she meant in her own name. She had, by her signature to the statutory declaration, however declared the contents to be true.  It may be that this document, as with the visa application, was prepared by another and said not to have been read over to her before it was signed.  Or it may that the Visa Applicant acts regardless of the truth her representations. The latter is more likely to be so.

31.     It is apparent from the whole of the evidence before the Tribunal and I so find that the Visa Applicant cannot be relied upon as a person who in her contact with the Respondent will take care to tell the truth.  She has not done so in the past and cannot be relied upon to do so in the future.

CHARACTER

32.     I am satisfied that on the basis of the evidence placed before the Tribunal the Visa Applicant is not of good character.  The Visa Applicant provided bogus documents and made false and misleading statements and caused false and misleading statements to be made to the Respondent.  As submitted on behalf of the Respondent she:

·“presented a false passport in the name of Noun Line, claiming to be married to Francis Laurent Nuberon with two children.  She presented a false marriage certificate, a false visa application to Thailand, and a false Cambodian identification card.

·Proceeded to overstay the visa granted to her based on the false and fraudulent application.  She remained unlawfully in Australia for more than three years from 27 December 1999 to 30 March 2003.

·Falsely declared in her application for a spouse visa that she had not travelled before to Australia and failed to disclose that she had been known by another name that is Noun Line.

·Made a false statement in a statutory declaration of the 5 March 2003.  Such declaration being presented to the Respondent.”

DISCRETIONARY FACTORS

33.     In the context of considering the discretionary factors the Tribunal as earlier indicated is required to assess or balance the significance or weight to be attributed to primary considerations and other considerations:

Protection of the Australian Community

34.     Factors relevant to an assessment of the level of risk to the community of the entry of a non-citizen include the seriousness of the improper conduct, the likelihood that it may be repeated and whether refusal of a visa may prevent or discourage similar conduct.

35. As stated above, the Direction makes specific reference to offences involving the making of false or misleading statements in connection with entry into 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. It is noted that a breach of the Act provides for a maximum penalty of 10 years imprisonment and a substantial fine or both. The severity of the penalties that may be imposed on breach of the Act are indicative of the seriousness with which conduct of this nature is regarded.

36.     The Visa Applicant made false statements and provided bogus documents.  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 has been earlier stressed.  It is of “fundamental importance to the control mechanism which this country exercises in visa applications in dealing with the many reasons for coming to Australia”.  (Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155).

37.     The extent of the Visa Applicant’s use of fraudulent documents can only demonstrate the nature of her stratagem in order to obtain entry into Australia.  Having gained such entry she overstayed the unlawfully obtained visitor visa by over three years.  She compounded her conduct by the falsities in her subject application and her statutory declaration.

38.     I agree with the submission made on behalf of the Respondent when it is said:

“The conduct of those who chose to come to Australia on a false premise and lodge false visa claims to do so operates to frustrate the purposes of the Act and imposes on the Australian community a great cost in processing of those false claims. In this case the Applicant [Visa Applicant] benefited from her fraudulent and false Tourist Visa application by being able to come and remain in Australia for three years …. The Applicant … has also lodged a spouse visa which misrepresents her circumstances by falsely declaring she had never been known by another name … and that she had not previously travelled to Australia … .”

39. The Visa Applicant has clearly engaged in conduct contrary to the specific provisions and general object of the Act. The Visa Applicant’s conduct is to be viewed with great seriousness.

40.     Such conduct is not to be characterised as short lived or an isolated breach of the law.  It was planned, premeditated, intentional and elaborate.  There is a real risk that the Visa Applicant may commit other forms of false and misleading conduct in order to obtain an advantage. 

41.     The Visa Applicant invoked the assistance of other people in perfecting her scheme.  Not only her friend and the friend’s husband who was a willing accomplice but in Australia her husband, who was aware of her illegal status from quite early in the relationship.  She obtained, she says, the assistance of Mr Mai and seeks to pass responsibility to him for providing the false information.  She was the Visa Applicant.  It was her responsibility to provide truthful information to the Respondent, not that of any other person.

42.     It is said on behalf of the Respondent that:

“Immigration malpractice by its very nature involves a level of pre-meditation and calculation.  Accordingly, the respondent submits that the refusal of the applicant’s application for migration to Australia would act as an effective general deterrent to non-citizens who may be tempted to conceal the truth with the purpose of obtaining an advantage to which they otherwise may not be entitled … .Conversely, the grant of a visa in this instance would effectively condone immigration malpractice in the eyes of non-citizens, as it would be tantamount to rewarding the applicant for his (sic) past conduct.”

43.     There is evidence before the Tribunal supporting this submission, I agree with it.  Refusal of a visa to the Visa Applicant might well deter others from endeavouring to employ a similar stratagem to that utilised by her.  It may dissuade applicant’s seeking to use persons not registered as migration agents.  It may underscore the need to be truthful in dealings with the Respondent.

Expectation of the Australian Community

44. It is reasonable for the Tribunal to conclude that conduct, the like of that engaged in by the Visa Applicant is not acceptable to the Australian community. I do so conclude. On this ground alone the Visa application may well be refused. It may not be not appropriate or proper for a person such as the Visa Applicant who has committed serious breaches of the Act to benefit from such improper conduct.

Best Interests of a Child

45.     There are two children who might be relevant to this application.   I say might be as the son of the Applicant, David, does not, on the evidence, have a parental relationship with the Visa Applicant.

46.     If the application be refused, the Visa Applicant and the daughter Vivien will remain living in Cambodia.  Whether the Applicant would join them is on the evidence before the Tribunal uncertain.  Whilst the Applicant indicated with some hesitation that he would, in the event of a visa refusal, leave Australia and travel to Cambodia, the Visa Applicant said otherwise.  The Applicant has employment in Australia and is not likely to obtain the same in Cambodia.  He has not returned to Cambodia since leaving that country in 1982.  He has his son David living in Australia who he supports with child maintenance and who he has with him for access or contact on a regular weekly basis.

47.     Thus if the visa be refused Vivien will remain in Cambodia with her mother, it being problematic whether her father would join them on a permanent basis.  Vivien has experienced various childhood health problems detailed in a report of Dr Siphal (Exhibit B).  There is evidence before the Tribunal as to the relative economic, social and health standards in Cambodia and Australia.  Without being in any way disparaging of the Cambodian people and the efforts being made by them to re-establish and stabilise their country after the recent disturbances, life in Australia would be more economically secure, socially comfortable and provide a more accessible system of healthcare.  Whether it would provide a preferred environment from a cultural point of view in which to bring up an ethnic Chinese/Cambodian child is another matter on which I am not qualified to comment and in respect of which there was not any evidence.

48.     If the Applicant should leave Australia, David might well suffer emotionally and from the withdrawal of child support.  If he should remain David will not be disadvantaged and Vivien and the Visa Applicant will continue to receive financial support from the Applicant by reason of his employment in this country.  These are all factors necessarily to be considered in arriving at the proper or preferable decision.

OTHER CONSIDERATIONS

49.     I am required by the Direction to also take into consideration matters other than those above discussed.

50.     The marriage of the Applicant and the Visa Applicant is relevant.  There is no issue as to its legitimacy.  The Applicant was however aware of the visa status of the Visa Applicant from early in their relationship.  The child Vivien was conceived with this knowledge, they married well-knowing the Visa Applicant was illegally in Australia.  The hardship caused to the Applicant by the refusal of a visa is to be considered in this context.

51.     The Visa Applicant has a sister living with her family in Australia.  There was not any evidence of the relationship between the Visa Applicant and her sister and the sister’s family, other than that she came to Australia to visit her and lived with her for a period.  The Visa Applicant and her daughter are living in Cambodia with her mother, her elder sister and that sister’s family.  She has another sister living in Cambodia.  There are no special circumstances arising from this situation.

DECISION

52.     After considering all of the factors discussed above I am of the opinion that the serious misconduct of the Visa Applicant, the likelihood of her repeating the same even be it she now says “sorry” in a letter dated 17 September 2003, written for her by Mr Mai and the need to protect the Australian community from the likelihood of similar conduct re-occurring, override the adverse effect upon the children of a refusal to grant a visa.  It is more likely than not the Applicant will remain in Australia.  David’s interests will not then be affected.  Vivien will remain living with her mother, grandmother, aunt and relatives in Cambodia receiving financial support from the Applicant.  The other considerations have earlier been discussed.

53.     In all the circumstances of this matter I am of the opinion and so find that on balance the factors weighing against the grant of a visa outweigh the factors favourable to such a grant.  Accordingly the decision under review is affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, Deputy President

Signed: A. Krilis
  Associate

Date/s of Hearing  28 and 29 June 2004
Date of Decision  21 July 2004
Solicitor for the Applicant          Mr Peter Bollard  
Solicitor for the Respondent     Mr Murray Allatt