Richardson and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 264
•29 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 264
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/1021
GENERAL ADIMINISTRATIVE DIVISION ) Re ROBERT RICHARDSON Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date 29 March 2005
Place Sydney
Decision The decision under review is affirmed
[Sgd] Deputy President J Block
CATCHWORDS
IMMIGRATION - spouse visa application – whether Visa Applicant is of good character – Visa Applicant entered into false marriage in Thailand to facilitate entry to Australia on tourist Visa – Visa Applicant paid substantial fee to come to Australia to work as a prostitute – worked illegally as prostitute in Australia – outstayed tourist visa – Visa Applicant said she was working to repay debts in Thailand and to support her son in Thailand – Visa Applicant met Applicant in brothel and later moved in with him – Visa Applicant detected by authorities and deported – Visa Applicant married Applicant in Thailand – application for spouse visa rejected on the basis of not of good character – discretion not exercised – decision under review affirmed.
Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Cai Lian Su and MIMIA [2005] AATA 107
Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984
Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731
Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029
Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148
Migration Act 1958 – sections 234, 235 and 501
Ministerial Direction 21
REASONS FOR DECISION
29 March 2005 Deputy President J Block 1. The decision under review is the refusal by the Respondent of a spouse visa application made by Mrs Dueanden Richardson (“the Visa Applicant”); that application was sponsored by her husband, Mr Robert Richardson (“the Applicant”). The application was refused pursuant to section 501 of the Migration Act 1958 (“the Act”) on the basis that the Visa Applicant does not pass the character test (Tp5 – Tp6).
2. The Applicant was represented by Mr Leonard Karp of counsel, instructed by Ms Anne O’Donoghue of O’Donoghue and Associates, lawyers. The Respondent was represented by Ms Catherine Petre of Clayton Utz, solicitors.
3. The Tribunal had before it the T-Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal also admitted into evidence the following exhibits:
(a)Exhibit A1: Statement by Patcharee Sathong dated 23 October 2004
(b)Exhibit A2: Psychological assessment of the Applicant, Robert Richardson by a clinical psychologist, Ms Peggy Lee dated 28 October 2004
(c)Exhibit A3: Affidavit of Mr Mark Richardson dated 1 November 2004 and unsigned.
(d)Exhibit A4: Affidavit of Ms Belinda Richardson dated 1 November 2004 and unsigned
(e)Exhibit A5: Statement by Ms Dueanden Richardson dated 23 October 2004
(f)Exhibit A6: Affidavit of Mr Robert Richardson dated 1 November 2004
4. The Respondent’s statement of facts and contentions dated 8 November 2004 contains the usual helpful chronology of relevant events. The Applicant is referred to in the chronology as the “review applicant”; that chronology reads as follows:
“27 November 1950
Mr Robert Richardson ("review applicant") was born in Australia (T10, p 150)
3 January 1960
Ms Ubol Preecha (aka Ms Dueanden Richardson) ("visa applicant") was born in Thailand (T10, p 122)
December 1969
The review applicant and Ms Marie Richardson were married. They have two children together (T10, p 106).
27 October 1992
Somrak Chaihanij was born in Thailand to the visa applicant and her de facto spouse at the time, Mr Somphet Chaihanij (T10, p146)
27 February 1995
The review applicant and Ms Marie Richardson were divorced (T10, p 151)
February 1999
The visa applicant's de facto relationship with Mr Chaihanij ended (T10, p 104). The visa applicant has sole custody of her son (T10, p 138)
7 June 2001
The visa applicant changed her name from Ubol to Dueanden (T10, p 124)
2001
The visa applicant registered a marriage with Mr Weerachoke Narasirirerk in Thailand (T10, p 104) to assist her in obtaining a visitor visa as his wife (T22, p 231)
21 June 2001
The visa applicant and Mr Narasirirerk were granted visas to visit Australia for tourism (T4, p 39 and T5, p 47)
22 June 2001
The visa applicant and Mr Narasirirerk were divorced (T10, p 131)
23 June 2001
The visa applicant arrived in Australia (T18, p 219).She began working in Australia without permission (T10, p 104)
August 2001
The applicants met at the brothel where the visa applicant worked and their relationship began (T10, pp 104)
23 September 2001
The visa applicant's visitor visa expired (T18, p 219)
November 2001
The visa applicant moved into the review applicant's house (T10, p 104). After she had moved in, she informed the review applicant that her visa had expired (T22, p 227)
11 July 2002
The visa applicant was detected in a brothel in St Mary's, Sydney, by officers of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA"), and detained.
The review applicant visited the visa applicant during her detention (T10, p 106)
13 July 2002
Following her detection, the visa applicant voluntarily returned to Thailand on the advice of the review applicant. The review applicant paid for her air ticket (T10, p 104-105)
31 August 2002
The review applicant travelled to Thailand (T10, p 71)
4 September 2002
The visa applicant and review applicant were married in Thailand (T10, p 136)
16 September 2002
The review applicant departed Thailand for Australia (T10, p 71)
14 October 2002
Sponsored by the review applicant, the visa applicant lodged an application for a provisional spouse (subclass 309) visa at the Australian embassy, Bangkok ("Embassy"). The visa applicant's son was included as a dependent on the application (T10, p 84)
8 January 2003 and 2 July 2003
The visa applicant attended interviews at the Embassy (T22, p 226)
11 July 2003
The Embassy wrote to the visa applicant providing notice that her application may be liable to refusal under section 501 of the Migration Act 1958 ("Act") (T23, p 239)
5 September 2003
The visa applicant's agent sent a letter to the Embassy enclosing statements by the applicants, a submission and evidence of the genuineness of the relationship (telephone bills and bank statements) (T27, p 251)
12 July 2004
The visa applicant's application for a provisional spouse (subclass 309) visa was refused by a delegate of the respondent (T2, p 8)
13 July 2004
DIMIA wrote to the visa applicant enclosing the decision record, a copy of every document relevant to the making of the decision and information about review rights (T2, p5)
9 August 2004
The review applicant applied to the Administrative Appeals Tribunal ("Tribunal") for review of the decision (T1, p 3)”
5. As a matter of balance, I include also clauses 1 to 11 of the Applicant’s Statement of Facts and Contentions dated 1 November 2004 as follows:
”[1] The Visa Applicant, Ms Dueanden Richardson, is a citizen of Thailand. She was born on 22 October 1967 in Thailand.
[2] The Visa Applicant is also known as
Dueanden Narasirirerk
Dueanden Suksuwanon
Ubol Preecha
[3] The Visa Applicant is married to an Australian citizen, Robert John Richardson. They were married in Thailand on 4 September 2002.
[4] The Visa Applicant has one son from a previous relationship, Somrak Chaihanij (aged 11). She has the sole custody of him.
[5] The Visa Applicant first entered Australia on 23 June 2001 using the name Dueanden Narasirirerk on a TR-979 Visitor Visa valid until 22 September 2001.
[6] The Visa Applicant did not depart Australia after her visitor visa expired on 22 September 2001 and remained unlawfully in Australia until her removal on 13 July 2002.
[7] The Visa Applicant met her current husband during her trip to Australia, Mr Robert Richardson. Mr Richardson travelled to Thailand after the Visa Applicant departed Australia and the couple married on 4 September 2002 in Thailand
[8] The Visa Applicant applied for a Spouse (provisional) (Subclass 309) visa on 17 October 2002.
[9] On 11 June 2003 the Visa Applicant received a letter from the Australian Embassy advising that the application was liable to refusal under Section 501(6))(c)(ii) of the Migration Act 1958 with respect to her past and present conduct.
[10] On 5 September 2003 the Visa Applicant made submissions through a migration agent regarding Section 501(6)(c)(ii) of the Migration Act 1958.
[11] On 13 July 2004 the Visa Applicant’s application was refused under Section 501(6)(c)(ii) of the Migration Act 1958 as it was considered that she provided false and misleading information to the Department in connection with a visitor visa application and had worked illegally in Australia while a unlawful non-citizen.”
6. Mr Karp, at the commencement of the proceedings and as a preliminary matter, raised an issue which, in his view, is both relevant and important. The fact that the Visa Applicant was a prostitute was not in his opinion relevant in that “the Tribunal is not engaged in a moral inquisition”. This is not the first occasion on which such an issue has been raised in this Tribunal; see, by way of example, Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029. My own view is that Mr Karp was entitled to raise that preliminary issue. At the same time it cannot be denied that to work as a prostitute is not, in some respects, akin to more conventional occupations and such as working in a bank; apart from any other considerations a prostitute encounters problems and dangers which are not applicable to other more conventional occupations. To treat these aspects as if they do not exist is to deny reality.
7. By way of an overview it can be said, in brief terms, that the Visa Applicant was born and raised in Thailand, and where she is now again resident. She is one of nine siblings, and being one brother and eight sisters. Prasit is the eldest and he is the Visa Applicant’s brother; all of the others are female and in order of age are:
Sureerat
Orasa
The Visa Applicant
Walanda
Namfon
Kanyapat
Wassana
Wanna
It may be noted that, somewhat oddly and for no reason of which the Tribunal is aware, ‘Kanyapat’ was omitted as a sibling in the spouse visa application
At the age of 24, the Visa Applicant entered into a de facto relationship with Somphet Chaihanij (“referred to in brief as “Somphet”); that relationship resulted in the birth of a son, Somrak Chaihanij (“the son” or “the child”) who is now 12 years old.
8. The Visa Applicant said that she borrowed money from her family (although her evidence, as to precisely who the lenders were, varied) for the purpose of Somphet’s goldsmith business. When the de facto relationship with Somphet terminated she, the Visa Applicant alone (according to her evidence), was responsible for the payment of that debt. She received no maintenance whatever from Somphet in respect of the son. She worked at first as a cleaner in Bangkok but her earnings from this source were insufficient. After a number of months she became a bar girl (prostitute) in Pattaya, which is a considerable distance from Bangkok. Her son was left, at that time, in the care of one of her sisters. While working in Pattaya she was approached by a woman known to her only as “Sie” who advised her that she, the Visa Applicant, could earn far more as a sex worker in Australia than she could in Thailand and that she, Sie, (for a very considerable amount) could arrange for her to do so, and in a brothel in Sydney.
9. The Visa Applicant was not, while in Australia and as a matter of economic necessity, forced into prostitution. She was a prostitute in Thailand and she came to Australia in order to earn more money in the same occupation. To enable her to come to Australia, a fake marriage was entered into with Weerachoke Narasirirerk (referred to in brief as “Weerachoke”). Having come to Australia, the Visa Applicant started work in a brothel in St Marys; that job having been pre-arranged by Sie in Thailand. She met the Applicant as a client; after moving into his home, she continued to work at the same brothel until eventually she was detected at the brothel and detained and obliged to leave Australia.
10. When the Visa Applicant was detained, she was asked a number of questions; a document entitled “Supplementary record of interview with detainees located working in the sex industry” (Tp63) reads as follows:
“Full name and date of birth
DUEANDEN NARASIRIRERK 22/10/1967
Who travelled to Australia with you?
I TRAVELLED BY MYSELF
Who organised your employment in Australia?
I LOOKED FOR EMPLOYMENT & ENDED UP HERE – A FEMALE TOOK ME THERE, I MET HER AT THE HOTEL WHERE I STAYED, SHE APPROACHED ME THERE.
Were you able to leave the premises unaccompanied? (to shop, visit friends)
LEFT SOMETIMES WITH BOYFRIEND WHO WORKS IN SYD
Was any force or threat used to get you to provide sexual services / work as a sex worker?
NO”
11. After her return to Thailand, the Visa Applicant was interviewed in Bangkok on 2 July 2003. The record of that interview appears at Tp226 – Tp233; the portions of Tps226,227,228 and 229 only are included in these reasons as follows:
“- …
- SP’s rel stat on F28: first met PA in 8/01 when he engaged her escort service at a parlor in Parramatta. He decided to see her again and went out together. He asked her to move in with him in 11/01 at his place and lived together until she returned to TL. She met both of his children and their rel were known to the family/friends.
- …
- Said after she broke up with her ex-husband, she had to support her child, she did not learn much. Her marriage life failed, never happy with him. She thought that to work o/seas would be better and she did not want to work in Pattaya all her life, she made only 500 bht/night from the bar. She only worked in Pattaya for 6 mths after broke up with ex-husband
- ...
- Said she only met Veerachoke twice, never lived with him. Said she travelled with Veerachoke, just two of them.
- Said she did not apply for the visa in person, Veerachoke did for her. She did sign on the application form for v/v, original M48 presented to PA/confirmed.
…
- Said she worked with Yean for about 3 mths. She rec 30% of what the customers paid an Yean kept the rest.
- Said she moved to St Mary. Said she met a Thai woman at a hair shop in Cabramatta, names Sri. Sri had married a NZ man, asked her to work with her at the brothel … She rec 4/5 of the payment. She’s able to save the money to pay back her sister before she returned to TL.
- …
- SP ‘Robert’ met at Yean’s brothel. He went for a girl in 8/01, he paid for her hour. She exchanged phone no.
- …
- Said she moved in with him 11/01 at his place. She still continued working in the brothel. She asked him to do so until end of the year 02. He was not happy but she insisted, otherwise she prepared to break up
- Said she thought he did not make much money and she did not want to bother him to support her family financially. She wanted to support her own and she also wanted to save money to buy a house in TL.
- …
- Said during staying with SP, she continued working at the brothel from Mon-Fri 0900 – 2200 hrs (Mon, Thur-Fri), 0900 – 1800 hrs (Tue-Wed). She wanted to work long hour to save money to buy a house in TL.
- Said she spent time with him on the weekend, they went to the market on Sunday together. She did all the housework, shared the work with him – Said SP paid for the household expenses and she paid for the food only.
- Said it’s his own house. She lives alone in this house.
- …
- Said they kept in touch by ltrs and phone calls, he called her every day to her sister’s no 519-2964. He told her not to call him as it’s very expensive.
- …
- Said he also sent her money from AA as she did not work. He started sending money since she returned to TL. Asked why he sent her money since he never supported her when she’s in AA. Said because she did not work in TL but did in AA. He sent her money every mths for about 1,000$ each.
- Said she reg MC with him at Bangkhen office on 4/9/02, no wedding ceremony/party. She wanted to make it a quiet one to save money.
- …
- Asked what her family plan: said she wanted her child to study as much as possible. Asked again what’s her plan with SP: to look after him when he’s old and wants to see her child to be a good person, not like her.”
12. The hearings in this matter took up three hearing days, and being 24 January 2005 (“first hearing day), 25 January 2005 (“second hearing day”) and 16 March 2005 (“third hearing day”). In fact, oral evidence was given only by the Applicant and the Visa Applicant and in the case of the Visa Applicant, by telephone link to Bangkok and with the assistance of an interpreter in the Thai language. Evidence of the nature given would not, in the normal course, have taken as long; there were delays in consequence of an interpreter being found to be unsatisfactory and having to be replaced; moreover Mr Karp was available for a part of the first hearing day only.
13. These reasons will include quotations from the evidence. I kept a record of the evidence given; my record may not accord exactly with the transcript but any differences will not be material.
PART B THE EVIDENCE OF THE APPLICANT
evidence in chief
14. The Applicant, who is 54 years old, works as a storeman for a computer company. He has been working in his current job for some five and a half years. He was married previously and has, in consequence, two adult children, one of whom has a child who is the Applicant’s granddaughter.
15. The Applicant first met the Visa Applicant in August 2001 by engaging her services at the brothel in St. Marys. He said that he was, at first, attracted to her by her appearance and after engaging her services “probably half a dozen times or so” over the course of about two months asked her out socially. The Applicant said that he had never before asked out a woman he had met at a brothel.
16. The Applicant took the Visa Applicant out socially for approximately two months before she moved into his home in November 2001. He stated that they went out together quite regularly and would often go sight-seeing or to dinner. The Applicant said that he became aware of the fact that the Visa Applicant was in Australia illegally and that she was working in Australia illegally when they began living together. He said that he consulted a migration agent as to the Visa Applicant’s status and was advised that, because of her illegal status, an application for an extension of her original tourist visa (or, for that matter, any other type of visa) would, in all probability, fail.
17. The Visa Applicant continued working at the brothel even after she started living with the Applicant and did so until she was detained in June 2002. The Applicant said “I definitely didn’t like it but I could understand her side of things as well”. So it was that she went to the brothel each day and returned late each night. However, so he said, the fact that she did so did not affect his feelings towards her. At the same time he said “it’s obviously not what I wanted”. .
18. The Applicant said that while the Visa Applicant was in Australia, a sister took care of her son. He said that she had no plans to remain in Australia permanently and that she wanted to obtain some financial security. He said also that she spoke of stopping work at the end of 2002. He said, furthermore, that the Visa Applicant had debts in an amount of A$6000 owing to her sister and her mother and an amount of A$20,000 owing in connection with her move to Australia. He said that the debt to her mother and sister would be the second to be paid and over a period of 18 months or two years.
19. The Applicant’s evidence was that the Visa Applicant had to work in order to pay her debts. When asked who could sue her for repayment, he replied that there was no one in Australia who could do so. When asked whether she expressed any fears his answer was that “she knew she had to repay but she did not have any fears”.
20. The Tribunal here notes that the Applicant’s evidence, in the context of money, was distinctly odd. After the Visa Applicant was obliged to return to Thailand he provided fully for her support, and that of her son, in Thailand and so that she has not been obliged to work in Thailand since her return to that country. Put in succinct terms, the Applicant has treated the Visa Applicant with considerable devotion. Why then did he not, after they commenced living together, simply pay her debts? If he was unable to do so in full he could have done so, as she said she did, through periodic payments. He said that he didn’t like her working in the brothel. That she had to do so, for financial reasons, appears to be inconsistent with the support which he subsequently provided.
21. The Visa Applicant was detained in the middle of 2002. An airline ticket was purchased by the Applicant and she returned to Thailand. He did not consider that their relationship was over and said to her that her detention was not a threat to their relationship. Indeed, and before she returned to Thailand, they professed their love for each other. He was asked about the Visa Applicant’s English skills at the time of her departure and he said that she was reasonably fluent, if ungrammatical, and that he could understand her.
22. The Applicant’s subsequent evidence can be dealt with in comparatively brief terms. After the Visa Applicant returned to Thailand, he kept in touch with her and communicated with her constantly. He married her in Thailand and has visited Thailand on nine occasions. He has met the Visa Applicant’s son and gets on with him so far as is possible, given that their contact has been limited both by time constraints and the fact that neither speaks the other’s language.
23. The Applicant has been employed in his present position for over five years. Prior to that he worked as a computer engineer, although he has no formal qualifications in this capacity. After leaving school he was a member of the air force for about 12 years, as an electrical fitter having received training in the air force. He left the air force in 1978. Before enlisting in the air force, he had been educated in Queensland although he did not achieve the level of a Higher School Certificate.
24. The Applicant said that if the decision under review were affirmed, he would be reunited with the Visa Applicant in Thailand. He would have some means; he has an unmortgaged home worth about A$300,000 and in addition has some superannuation entitlements. He thought that it might be possible to earn a living in Thailand by acquiring a business but had not thought about what sort of business that might be.
25. The Applicant was asked how he communicated with people in Thailand and he answered simply that he did not. However, he said that Thai people were very friendly towards him.
26. The Applicant has a son who lives in Blacktown and works in the same company which employs him. His daughter lives at the Gold Coast and he sees her every three months or so. His daughter, in turn, has a daughter, (his granddaughter) who lives with her father in Penrith and he sees her monthly.
cross-examination
27. The Applicant was asked about the Visa Applicant’s debt to her mother and sister; it had been referred to as being in an amount of 150,000 baht equivalent to A$6000, whereas in her statement Exhibit A6 the Visa Applicant referred to an amount of 90,000 baht. He answered that the difference arose from the fact that the exchange rate had changed. (The Tribunal notes that a currency conversion difference would, given that the debt was incurred in baht, affect the Australian dollar equivalent rather than the reverse). The Applicant said that the debt to her mother and sister had been repaid about three months before her return to Thailand; on this basis repayment would have been achieved by about March 2002.
28. It was put to the Applicant that the Visa Applicant said at an interview in Bangkok (Tp227) that she actually received 30% of what she earned and that a woman called Yean took the rest. He answered, fairly enough, that he did not know any more than that she was earning enough to support her son.
29. The Applicant said that when he married the Visa Applicant he did not think in terms of living in Thailand; he thought that the Visa Applicant would come to Australia.
30. The Applicant said that the Visa Applicant has met both his children but that neither of them knew what the Visa Applicant did in Australia.
31. My overall impression of the Applicant’s evidence is that (with some reservations) I should accept it. He is nearly 55 years old but looks much younger. He is rather quiet and reserved and perhaps rather shy. Although he has little in the way of formal qualifications, he has achieved some skills. He said, for example, that he is able to repair computers. I think it fair to say that he has, in some respects, been somewhat naïve; he does not appear to have appreciated the inconsistent nature of the financial evidence. He has demonstrated that he is devoted to the Visa Applicant. This arises from the support he has provided and his repeated visits to Thailand where it might be that he is often somewhat lonely. At the same time, I incline to the view that he is fit enough and skilled enough to obtain computer or other suitable work of some sort in Thailand.
PART C THE VISA APPLICANT
evidence in chief
32. The Visa Applicant now lives in Bangkok; she said that she is doing a course “to improve my career”; (she did not specify the nature of that course at that stage of her evidence”).
33. The Visa Applicant confirmed the truth of her witness statement which is Exhibit A6.
34. The Visa Applicant was involved in a de facto relationship with Somphet. That relationship lasted for seven years and ended in 1999. They lived together in Bangkok where he was a goldsmith. As such he would obtain jobs from others and thus act as sub-contractor. He started his business with capital of 30,000 baht provided by his mother. He needed other funds and the Visa Applicant provided 80,000 baht borrowed from her mother and a sister. On the basis that the exchange rate has been and is approximately A$1 equals 30 baht, the equivalent of 80,000 baht in A$ would be approximately $2700.
35. The Visa Applicant said that when she parted from Somphet, she was held responsible for the debt owing to her mother and her sister and that there was pressure on her to repay it.
36. When the relationship with Somphet ended, the Visa Applicant became a house cleaner. She worked in that capacity for about four or five months and while staying at “my sister’s house”. It did not pay enough and after taking advice from a friend (never named) she went to Pattaya in order to become a bar girl (prostitute) and leaving her son in Bangkok in the care of a sister. She had worked in Pattaya for about eight months, earning about 500 baht per night, when she met Sie. She said that her earnings were not sufficient to enable her to support her son.
37. The Visa Applicant was asked who in her family knew that she was working as a bar girl. She answered that her younger sister knew. However, that sister is not the sister to whom she owed money. The sister, to whom she owed money, so she said at that stage, was Sureerat. Shortly thereafter she said that she owed the money to two younger sisters, Namfon and Orasa, and to her mother, Jumpa. When asked about Sureerat she then said that she did not owe Sureerat any money. Sureerat is an older sister who lives with her mother. When asked why she mentioned Sureerat in this context as a sister to whom she owed money, she said that it was Sureerat who asked her to repay the money due to her mother.
38. Further examination indicated that the sister with whom she had been living in Bangkok and who knew that she was working as a bar girl in Pattaya was Wanna. (Later evidence suggested that any reference to “my sister’s house” was probably inaccurate because it would seem that a considerable number of the family members live in the same home in Bangkok; at this time, the persons living in that house are Orasa, Walanda, Kanyapat, Wassana, Namfon, her son (that is the son of the Visa Applicant) and two nephews and two nieces. The accommodation in question is a town house with three bedrooms, and it is owned by Wanna.
39. While working in Pattaya, Sie contacted the Visa Applicant and told her that she (Sie) could get work for the Visa Applicant in a brothel in Australia and where she would earn much more than she was then earning. The cost to the Visa Applicant charged by Sie would be 800,000 baht or 400,000 baht with the lower amount payable if she paid in Thailand and the higher amount payable if she made payment in Australia. (There was no explanation as to why there should be this differential). It was put to the Visa Applicant that she was apparently prepared to pay 800,000 baht (and which was the option that she was forced, so she said, to take) in order to go to Australia and so as to earn enough money to repay her own family 80,000 baht. Her answer was “I can pay my relatives from Sydney after I start work”. And when asked why the fee was double if paid from Sydney, she answered “that is the way of it”.
Put in succinct terms, the Visa Applicant agreed that she was prepared to pay 800,000 baht in order to repay 80,000 baht to her family.
It was put to the Visa Applicant that this appeared to be a very bad transaction indeed, in that she had to pay 10 times as much in order to repay the amount due to her family. When asked why she accepted such a bad proposition she said “I haven’t got any choice. If I stay in Thailand I don’t have money to buy food in Thailand”.
The following exchanges then took place:
“How many meetings did you have with this woman?
Two or three times
Did she tell you who would receive the money you earned in Australia?
I myself would receive the money.
How would the money you earn reach the people to whom you owed money?
Because my sister has opened an account in Bangkok into which money is to be transferred.
I am asking you how the money you borrowed (80,000 baht) was to be repaid.
By working.
Is it correct to say that the money you earned in Australia at the brothel would be retained to pay off your debt?
Actually there would be someone who would come and collect money from me every week.”
40. The Visa Applicant then said that Sie arranged her passport and visa to Australia. Sie asked her for a bank statement and when the Visa Applicant could not provide one, she (Sie) arranged for her to marry Weerachoke and to register the marriage. Weerachoke was required “because he had a secure job”.
PART DTHE EVIDENCE OF THE VISA APPLICANT; SECOND HEARING DAY
41. At the commencement of the second hearing day the Visa Applicant said that she borrowed 80,000 baht from her mother and two sisters. She said that the two sisters from whom she borrowed money were Namfon and Wassana.
42. It was then put to the Visa Applicant that she had said that she borrowed 80,000 baht from relatives but that in her statement (Exhibit A6) she said that the amount was 90,000 baht.
43. She went on to say that the exact amount is 87,000 baht owing; 20,000 to her mother, 40,000 to Wassana, 20,000 to Namfon and 7,000 to Kanyapat. (It will be noted then that the number of lender sisters had moved from one to two, and then to three).
44. It was put to the Visa Applicant that she said at her interview in Bangkok, in July 2003, that in Pattaya she earned 1000 baht per night (see Tp230). She answered that it was not easy to earn 1000 baht per night in Pattaya. When reminded that this was what she told the Australian Embassy, she said that with a good customer she might earn 1000 baht but on average she earned 500 baht. In general terms the record of interview previously included (in part) in these reasons does not accord with her evidence as to her going to Australia to earn money to pay off her debts.
45. Her evidence as to what she had to pay Sie was queried in the light of what she said at interview in Bangkok. She said (Tp230) that she had to pay 400,000; that she paid 200,000 baht before she obtained the visa and had to pay the balance later. She said “I never said that”. And the following exchanges then took place:
“I never said that. He asked me how much I had to pay and I told him 400,000 but if I came to Sydney I had to pay 800,000. If I told the immigration officer I have to pay 200,000 everyone would want to come because it’s cheap.
So the statement that you had to pay 400,000 baht in total was incorrect.
I didn’t say anything like that. What I said at the embassy and what I say today is the same.
This meant that you would be spending 800,000 to pay a debt of less than 90,000 baht.
Yes
Why did you agree to do this – it was costing you a lot more money that you owed to your mother and your sisters?
The first reason was because of my son; I have to raise him by myself and also I have to pay the debt. The money which I have to pay is to my mothers and sisters – the only chance to pay them is to come to Sydney.”
46. The Visa Applicant insisted that she had to incur a very large debt of 800,000 to pay her mother and sisters 80,000 baht. She said that “the first reason was because of my son – I have to raise him myself and I have to pay the debt and the only chance to pay them is to come to Sydney”.
47. The evidence as to money matters became even more confused (and confusing). In Sydney she charged her customers A$50 for a half an hour and A$105 for an hour. When asked how much the brothel took out of her earnings, her answer was “that depends on how many jobs I did”. It was never possible to ascertain how much she charged, how much she earned net of the brothel’s percentage and how much she got in cash. Her evidence was that in three months she paid Sie back in full and that she paid her mother and sisters back within three months thereafter.
48. On any rational basis it was not possible to pay back debts of such magnitude within so short a time. It is difficult to accept that she was prepared to incur a debt of 800,000 baht to pay back her mother and either one, two or three sisters 80,000 baht or 90,000 baht or 87,000 baht. It is unlikely that she was indebted to her family at all. And it is even more unlikely that, if she was so indebted, they would have pressed for payment and so much so that she had to become a prostitute in Sydney to repay them. The probabilities are that she came to Sydney to be a prostitute in order to earn money and for no other reason and all of her inconsistent evidence as to her obligations in respect of debts was fictional.
49. The evidence as to her marriage was that it was undertaken simply in order to get her into Australia. This indeed was why her birth name was changed from Ubol to Dueanden; it had apparently to accord with the name of the Weerachoke’s wife. When asked whether she thought that she was doing anything wrong she sad “I knew I did something wrong but I had to do it for my son”.
50. It was put to her that at the interview in Bangkok she said that she had provided false information unintentionally. Her answer was that she had only got to year four in schooling, couldn’t read English and that she had signed whatever they asked her to sign. The following exchange took place:
“You knew at this stage that you had entered into a false marriage?
Yes I knew.
And you knew it was being used to assist you to get a visa?
Yes.
How did you unknowingly and unintentionally provide false information?
Even though I knew, if it’s for your son you do it.
But you said that you provided it unknowingly and unintentionally, in what sense was it unknowing and unintentional?
I didn’t mean to deceive but I had to do it – I had to do it for my son.
To what extent did you consider whether what you were doing was wrong in entering into this false marriage?
Because I want to earn money and I want my child to have a good education.”
51. As to the circumstances in which she came to live with the Applicant, she said that he was gentle and polite and not like “other men, some of whom were rough”.
52. After moving in with the Applicant, he knew about the fact that she was in Australia illegally and working illegally. When asked whether the Applicant asked her to stop work she answered “he didn’t. I told him that I still have to pay debts to my mother and sisters and I have to send money to my son”.
When asked whether the Applicant asked her to stop work or not she answered “he asked me to stop working about six to seven months after I moved in with him”.
When asked about the significance of the period of seven months she answered “firstly because I had nothing in Thailand and I had to pay money to my mother and sisters in order to provide for my son”.
53. It was at that stage that the Visa Applicant confirmed that she paid Sie back in three months and her mother and sisters within three months thereafter. When she was asked why she continued working thereafter, she answered “because I have nothing in Thailand and I have to keep working for my son”.
54. She was asked whether the Applicant offered to support her if she stopped working; her answer was “at that time we didn’t talk about that”.
When asked when they did talk about these matters she answered “I stayed with him for a while and when he asked me to stop working I begged him to let me go on because I want to pay my mum and to get the money for my son”.
The Visa Applicant said that when she left Thailand, she left her son in the charge of Wanna.
55. The Visa Applicant said that after she returned to Thailand she gave the Applicant the phone number of her sister’s house. When asked whether she was the only sister or whether there were others with whom she lived (and after a long conversation with the interpreter), she said that the inhabitants of the house which she commenced living and is still living are those set out in clause 38.
56. Since returning to Thailand the Visa Applicant has not worked. When asked what course she had taken she said that it was one which taught weaving and making candles and artificial flowers.
57. The Visa Applicant said that if the decision were affirmed she did expect the Applicant to join her in Thailand. She said that he wouldn’t find it easy to get a job and she also said “we won’t have much money”.
58. The Visa Applicant said that she had met the Applicant’s children many times.
the cross examination of the visa applicant – the third hearing day
59. Ms Petre commenced by asking the Visa Applicant why she came to Australia; she answered that “at first I want to work”. And when asked why she wanted to work she answered “I needed to support my child”.
She was then asked why she could not do so in Thailand and she answered “because I am in debt”. She went on to say that the amount of that debt was almost 90,000 baht owing to her mother and her younger sister.
60. It was then put to her that her previous evidence as to the sisters, to whom she said she was indebted, had varied considerably. She answered that “I was in debt to my mother and my sister and I had to support my child”. She was then asked which sister she was referring to and she answered “Namfon Wassana”. When asked whether Namfon Wassana referred to one or two sisters she answered that it referred to two sisters being Namfon and Wassana. She went on to say that there was another younger sister “but I didn’t have much debt to her”. It was at that stage that she then said that she also owed a small amount to her sister Kanyapat.
61. The ensuing cross-examination related to the fact that the amount of nearly 90,000 baht was borrowed by her to on-lend to Somphet. Her evidence was that she made one attempt only to recover the money from Somphet but that when she rang him he put the phone down. Later, in her evidence, she said that she made a considerable number of attempts to recover that money. She said that she knew that it would be impossible to recover money from him because he never paid his debts and so that legal proceedings would not be of assistance. She said that, in any event, she could not afford a lawyer.
62. Evidence then followed as to whether the family brought pressure to bear on her to repay the money. Her answer was that they didn’t force her but that they needed money “because it was five years already”.
63. The Visa Applicant said that she came to Australia to earn money to support her child because she was receiving no support from the child’s father. She agreed that she worked in Thailand but said that she didn’t earn enough and it was for this reason that she became a prostitute in Pattaya.
64. The Visa Applicant was then cross-examined about her tourist visa application which appears at Tp39. It may be noted at the outset that the application proper is in both English and Thai. The Visa Applicant said at first that she could not read it because it was in English only. When confronted with the fact that it was in Thai as well she said that she had never seen it. When it was put to her that she must have seen it because she signed it, her answer was that “they brought the form and it was not in the embassy”.
65. The Visa Applicant was then cross-examined as to her earnings at the brothel. She said that she earned about A$1,500 or A$2,000 per week. She insisted that the brothel paid her earnings to her in full and being all amounts which were paid by her customers; she was paid (so she said) in cash in the morning and in the evening of each day. A female person came at weekly intervals to the brothel to collect instalments due on her debt to Sie. The Visa Applicant said that she thought A$1 was equivalent to 20 baht; (as previously noted in these reasons a rate of A$1 equals 30 baht is more likely). The Tribunal notes in this context that it is simply not conceivable that the brothel did not keep a part, and probably a substantial part, of the Visa Applicant’s earnings. The whole racket was orchestrated by Sie for reward. She was clearly closely connected with the brothel. It is not conceivable that the brothel would not have retained money out of her earnings, in part for her keep and in part to ensure that Sie was paid.
66. Having paid Sie in full, she started repaying her own family. A person named Dtum collected money from her for this purpose. When asked how she knew Dtum, she answered that Dtum worked in the same brothel. The Tribunal was in other words asked to believe that Dtum, a fellow prostitute in the same brothel, collected her, the Visa Applicant’s, money in order to send it to her family and that she paid her family in full by December 2001. (There was other evidence and in particular by the Applicant, that she paid her family in full about three months before her return to Thailand; she was detained in the middle of 2002). The Visa Applicant said that Dtum provided her with receipts; there were no such receipts in evidence.
67. The Visa Applicant was asked why she did not then, having paid all of her debts in full, return to Thailand and, in other words, at the beginning of 2002. She answered that she didn’t have enough money to go back to Thailand. She said also that she couldn’t contact the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) about her unlawful presence in Australia because she didn’t know where to go. As to her contention that she had no money available, she said that she knew no one and had no money. She was asked about Dtum as a possible source. She said “we didn’t speak together”. And when it was put to her that Dtum was sending her money to her family in Thailand, she said “we speak of other things”.
68. When asked why she didn’t ask the Applicant for money she said that she knew he was not well off. She said also that she had recently started living with him; (by the end of December 2001 she had been living with him for nearly two months). She repeated that the Applicant knew that she was living and working illegally in Australia. She said that the Applicant suggested that she consult a lawyer; she consulted one Krit (a Thai man) who said that they should register their marriage in Australia. When asked why they did not marry and do so she answered “we got advice from the lawyer and we weren’t sure what was best to do”.
69. It was at this stage that the Visa Applicant said for the first time that while living with the Applicant she had to send money to Thailand for the support not only of her son but also her mother. When it was put to her that she could have used some of her money for an air ticket to Thailand, she repeated that she was sending money to Thailand for her son and her mother “but I did have some money”. She said also that she had a return ticket but “it was too old”. She later said that she had never seen the air ticket which was at all times retained by Weerachoke.
70. The Visa Applicant and the Applicant did discuss a return to Thailand but to take place at the end of 2002. She said that she would have had to go alone because he, the Applicant, did not have a passport and moreover had not even applied for one at the time of her detention and departure.
71. The Visa Applicant was referred to Tp63 and being the supplementary record of interview and in which it was noted that the Visa Applicant said that after coming to Australia she had to look for work. That statement is in direct conflict with the statements made at the interview in Bangkok in which she had said that employment was arranged for her while in Thailand and that she paid 400,000 baht in total and 200,000 baht was paid in Thailand. That evidence, in turn, was in conflict with her evidence before the Tribunal that she paid 800,000 baht in instalments after coming to Australia.
72. The Visa Applicant has not worked since returning to Thailand. She has not looked for work because she is “waiting for my husband”. The Applicant supports her and her son fully. She said that Somphet had never provided any support for her son and cannot be compelled to do so “because we did not register our marriage”.
73. The Visa Applicant said that the Applicant has visited Thailand ten times (to be contrasted with his evidence as to nine visits), that he has a good relationship with her son with whom he, the Applicant, has spent a considerable period of time and that “they play together”. The Applicant had said that he had spent little time with the Visa Applicant’s son and that they cannot converse because of language problems.
re-examination
74. In re-examination, the Visa Applicant said she tried, on numerous occasions, to recover the family loan from Somphet; (she had said in cross-examination previously that she tried only once).
75. The Visa Applicant was referred to Tp226 where she said that Noi had arranged her move to Australia. Tp226 reads relevantly as follows:
“- Said she’s born in Trang, she used to work in Pattaya, working in a bar and sex service and met a girl in Pattaya, nicknamed Noi and asked Noi to help her get the visa to work in AA. She met Noi in a bar, Noi said she’d a friend in AA. She paid to Noi for 400,000 bht to organise her a visa, including paymen to the man she reg MC – Veerachoke NARASIRIREK’. Said she borrowed money from her siblings, already paid bak.
- Said after she broke up with her ex-husband, she had to support her child, she did not learn much. Her marriage life failed, never happy with him. She thought that to work o/seas would be better and she did not want to work in Pattaya all her life, she only made 500 bht/night from the bar”.
The Visa Applicant said that she did not tell the Embassy anything as to Noi but that she paid Sie and that she did not know how the Embassy notes came to be made.
76. Further re-examination served only to exacerbate the entirely unsatisfactory nature of the Visa Applicant’s evidence.
PART E THE CHARACTER TEST AND ANALYSIS OF THE EVIDENCE
77. Mr Karp had from the outset (correctly) conceded that the Visa Applicant could not pass the character test.
78. The Visa Applicant’s evidence before the Tribunal was quite remarkably untruthful. On numerous occasions answers were given which did not relate to the question asked; on other numerous occasions, questions were asked and met with an answer which was itself a question.
79. I do not believe, as I have said, that the Visa Applicant borrowed 90,000 baht from her mother and either one, two or three of her sisters; alternatively if she did borrow any amount at all there was no pressure on her to repay. This appears to be a united family; many of them live in the same house in Bangkok. When the Applicant was away, first in Pattaya and then in Australia, and for extended periods of time, one of her sisters cared for her son.
80. As to Sie, the evidence is even more inconsistent. Depending on which evidence one is considering, the Visa Applicant incurred a debt of 400,000 baht in Thailand, half of which was paid before she left Thailand. Alternatively she owed 800,000 baht payable from her earnings in Sydney and re-paid, moreover, in three months. Based on the evidence of the Visa Applicant as to her earnings at the brothel, it is unlikely on these figures that she could have repaid 800,000 baht within three months.
81. Her evidence as to money was unconvincing in the extreme. Her evidence as to her visa application must be categorised in much the same way. It may be noted that none of her mother or any of her sisters gave evidence as to any of these matters.
82. The evidence of the Applicant is acceptable subject only to one minor reservation. The Tribunal is asked to believe that from November 2001, the Visa Applicant lived with the Applicant but went to work at the brothel not only until her debts were paid but thereafter until her detention. His generosity to her after her return to Thailand is such that he would surely have furnished her with the means to pay her family debt, it if ever existed (which is unlikely) and with the cost of an air ticket, assuming she had ever contemplated a return to Thailand (which is equally unlikely).
83. In respect of all inconsistencies, the evidence of the Applicant is to be preferred to that of the Visa Applicant. I do not believe that she had much contact with the Applicant’s children. Her evidence as to the Applicant’s relationship with her son is unlikely.
84. The Visa Applicant breached section 234 of the Act both in respect of the fraudulent manner in which she achieved entry into Australia and also in her evidence before this Tribunal. She breached section 235 of the Act in that she worked illegally throughout her stay in Australia. The penalties prescribed for breaches of section of 234 of the Act in particular are such that I must regard her conduct as very serious indeed.
85. I should note that Exhibits A1, A2, A3 and A4 were tendered on the basis that Ms Petre would not require any of the persons concerned for the purpose of cross-examination. An examination of those exhibits indicates that they do not advance matters to any extent. The Applicant’s children speak well of the Visa Applicant but without adverting to the circumstances in which she came to Australia and lived and worked in Australia illegally. The psychological assessment by Peggy Lee testifies as to the Applicant’s need for the Visa Applicant but in terms which might be thought to be obvious enough.
PART EDIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No. 21 (“DIRECTION 21”)
86. In this Part E, references to numbered clauses refer to numbered clauses in Direction 21.
87. The primary considerations are set out in clause 2.3 which reads as follows:
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community; and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
88. Clause 2.3 must be read in conjunction with clause 2.5 of Direction 21, reading as follows:
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
89. Generally in relation to the primary consideration, I refer to a number of decisions of this Tribunal.
In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, per Deputy President Wright:
“33.In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.
In Cai Lian Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107, per Deputy President Walker:
“In my view the community expects that the migration program will be administered in a just and humane manner. That implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.”
In Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, per Deputy President McMahon:
“As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.”
In Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029, per Deputy President Walker:
“In the Tribunal’s view, [the Applicant’s] conduct indicates that she would be prepared to continue to make false and misleading statements if she perceives this to be for her benefit. The Tribunal recognises that the refusal of a visa in such circumstances is likely to deter others who may be contemplating committing similar misconduct”.
In Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984, per Deputy President Forgie:
“The fact that I am satisfied that they [the Applicants] are both likely to lead law abiding lives in the future does not, in this case, outweigh the need to deter others from adopting the same course of conduct to gain entry to Australia”.
In Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 per Deputy President Chappell:
“56. The Tribunal acknowledges that Ms Kaufman has suffered considerable hardship as a result of her separation from her husband and the uncertainty of the outcome of these proceedings. However, as the Tribunal has emphasised on a number of occasions in earlier decisions, the dilemma for the decision maker in cases of this type is to seek to balance the competing interests o the individuals involved with those of the Australian community at large.
…
57. …this hardship is not of sufficient weight to justify the exercise of the discretion to grant a visa contained in s501 of the Act. The legitimate interests of the Australian community in the maintenance of an ordered immigration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour.”
And in Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148 per Deputy President McMahon:
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.
90. I do not think that the Visa Applicant poses a substantial threat to the Australian public or that recidivism constitutes a high risk. Neither aspect can, however, be discounted given the fact that her offences occurred with such total disregard for Australian law.
91. As to deterrence, Mr Karp contended that an unfavourable decision (in respect of the Visa Applicant) will not deter other Thai women from entering Australia for the purposes of prostitution. He may be right. But the fact remains that to reward conduct of this nature with a grant of a visa would be to send entirely the wrong message.
92. Mr Karp conceded in relation to clause 2.12 of Direction 21 that most members of the Australian community would expect that a visa be refused in these circumstances, although he also contended that there might be some members of the Australian community who, if made fully aware of all of the facts, might take a different view. In my opinion, the latter view might be held but if so by a small minority only.
93. As to clause 2.17, I accept that to refuse a visa would cause hardship to the Applicant. Although he has made it clear that he intends to be reunited with the Visa Applicant if necessary in Thailand, it will not be easy, albeit not impossible, for him to do so. His hardship factor is mitigated by the fact that he was fully aware from the outset of the Visa Applicant’s true position. I cannot explain the fact that some of his behaviour would seem, in the eyes of many, to be distinctly odd. Mr Karp made mention in this context of the Applicant’s close relationship with his granddaughter; he sees her once a month, and in any event plainly gives priority to his marriage.
94. There have been numerous cases before this Tribunal which have the effect that hardship to a spouse with knowledge will not outweigh adverse primary considerations. . See in this context Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 in which Deputy President McMahon said: “the emotional hardship which he will ultimately suffer must be discounted heavily by the fact of his pre-knowledge of the likely consequences.”
95. This is not a case in which it is possible to exercise the discretion in favour of the Visa Applicant, and accordingly the decision under review must be affirmed.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: A. Krilis Associate
Date/s of Hearing 24 & 25 January 2005, 16 March 2005
Date of Decision 29 March 2005
Counsel for the Applicant Mr Leonard Karp
Solicitor for the Applicant Ms Anne O’Donoghue
Solicitor for the Respondent Ms Catherine Petre
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