Street and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 805
•19 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 805
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1555
GENERAL ADMINISTRATIVE DIVISION ) Re GARY STREET Applicant
And
MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date 19 August 2005
Place Sydney
Decision The decision under review is affirmed. [Sgd] Mr J Block, Deputy President
CATCHWORDS
IMMIGRATION – character test – whether the Applicant is not of good character – breaches of section 234 of the Migration Act – failure to disclose criminal convictions – attempted to use false passport to enter the United States - whether the Minister should exercise her discretion in favour of the Applicant – decision affirmed
Migration Act 1958 – sections 234, 500, 501
Ministerial Direction 21
Moon and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 625
Beale v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Soo Cho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112
Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575
Susilo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495
Hanna v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 257
REASONS FOR DECISION
19 August 2005 part a – introduction and general
1. The decision under review is the refusal dated 26 November 2004, on character grounds, of a Prospective Marriage (subclass 300) visa applied for by Mathurin Nonthasen (“the Visa Applicant”); that application was sponsored by Gary Street, an Australian resident and citizen (“the Applicant”).
2. The Applicant was represented by Mr Christopher Levingston, solicitor, while the Respondent was represented by Mr Rohan Higgins of Clayton Utz, solicitors. The Tribunal had before it the T-documents together with exhibits as follows:
·Exhibit A1 - statutory declaration by the Applicant dated 1 April 2005;
·Exhibit A2 - witness statement by the Visa Applicant dated 17 March 2005;
·Exhibit R1 - document entitled “The Criminal Justice System and Community-Based Treatment of Offenders in Thailand”.
3. The Respondent’s Statement of Facts and Contentions, dated 13 April 2005, contains, under the head of “Facts”, the usual helpful summary of relevant facts; its content under that head is included as follows:
“FACTS
“16.06.1999
Ms Mathurin Nonthasen is convicted of possession of firearms and bullets without authorization and sentenced to 9 months imprisonment, suspended for 1 year. She is fined 4500 Baht.
04.08.1999
Ms Nonthasen is convicted of giving false evidence to an official and fined 500 Baht
29.07.2002
Ms Nonthasen applies for a Tourist (Short stay) subclass 676 visa. She indicates on the application form that she has a child who will not be travelling with her and that she has never been convicted of a crime or offence in any country.
26.11.2002
Ms Nonthasen applies for another Tourist (Short stay) subclass 676 visa. She indicates on the application form that she has a child who will not be travelling with her and that she has never been convicted of a crime or offence in any country.
29.11.2002
Ms Nonthasen completes an Incoming passenger card on which she indicates that she does not have any criminal convictions.
26.03.2003
Ms Nonthasen applies for a Prospective Marriage (subclass 300) visa. She indicates on the application form that she has a child who will not be travelling with her and that she has never been convicted of a crime or offence in any country.
11.07.2003
Ms Nonthasen writes a letter to the Australian Embassy in which she states she gave birth to a son in September 1996, Master Saengpet, whose father is Rod, a Laotian-Vietnamese living in the United States.
20.11.2004
The Minister's delegate refuses Ms Nonthasen's Prospective Marriage (subclass 300) visa pursuant to section 501(1) of the Migration Act 1958 after finding that she does not pass the character test after having regard to her past and present general conduct.”
4. As a matter of balance, the content of the Applicant’s Statement of Facts and Contentions dated 4 April 2005 under “Facts” is included as follows:
“FACTS
The facts as disclosed in the document described as decision record document G1 folios 1 to 13 of the Section 37 T documents are admitted generally.
The “conclusions” at paragraphs 43 to 66 inclusive at pages 11 to 13 of the document described as G1 constitute an opinion and are not admitted and should not be construed as an admission that under the circumstances the decision to exercise powers under Section 501(1) of the Migration Act 1958 is appropriate.”
5. The Visa Applicant was interviewed at the Australian Embassy in Bangkok on 26 February 2004. The record of that interview was of particular importance in relation to the evidence of the Visa Applicant; a part of that interview record (Tpp140 – 141) is included in these reasons (on the basis that references to numbered questions in the Visa Applicant’s evidence relate to numbered questions of that interview report) as follows:
“8) Did Garry read out all the questions for you before he completed?
PA: yes
9) Did he read this question 24 for you?
PA: yes but I could not remember – it was long time ago
10. All question in Q24 are marked ‘No’ did you agree
PA: yes
11. Dot point 1 of Q24 read out to PA
PA: no
12: you understand the question
PA: yes
13: What about your conviction regarding firearm and visa
PA: is it relevant to this question
14. Question re-read to PA
PA: at that time I did not fully understand the question
15. Was Mr Street aware of the two convictions
PA: at the time we filled the form he did not know but he is aware now
16.Are you aware that by answer ‘no’ to that question you are against the Migration Act by providing incorrect info to the Dept
PA:not I know – at that time I did not know – I did not intend to
17.Does Mr Street speak Thai
PA.No
18.You did not have anyone who read Eng and can speak Thai translated this form for you
PA:no – we completed the form together
19.Advise PA that we are going to talk about her 2 conviction. The first conviction is the possessing of firearm and bullet. Do you have anything to say about that
PA:on that day I went out with my friend – and we drunk a little bit – I know him since we were young – on that day he had gun but I did not know until we passed the check point – he passed the gun to me and said normally police will not check woman – on that day they did
20.You went to court – statement re-read (f.284) the fine has been paid
PA:yes – my friend paid
21.Now I’m going to ask you about the second conviction
PA:providing misleading information – I would like to go to USA – I used fake passport – sub photo passport – I was arrested by the Immigration at the airport before departure – at that time I would like to visit my boyfriend – father o my child - at that time I was silly
22.And in your statement you said you has visa but you just said you use fake ptt.
PA:I used another person ptt who already had the visa and only the photo changed
23.Did you go to US Embassy for that visa
PA:No
24.If you’d like to visit you bf in USA who not visit US Embassy and obtain visa
PA:not exactly that I’d like to visit him. I’d like to find him – we lost contact – I did not have much money – he did not send money to support our child
25.And why not go to US Embassy to obtain the visa
PA:I heard that they asked me to show financial statement which I didn’t have – by this, its like I buy the visa, they arranged everything which I didn’t have – by this, its like I buy the visa, they arranged everything for me
26.do you know the person who provide you the forge ptt.
PA:yes, my fr introduced me to the person but we are not very close – only know nickname “Joo” female – my fr name “narin” she is in USA no
27.How did you she to go USA
PA:same way but she got pass at the airport
28.Are you still in contact with Narin
PA:no, its long time ago
29.How much did you pay for that ptt
PA:35,000 THB
30.who pay for you airline ticket
PA:they
31.so 35,000 is for ptt and ticket
PA:no 35,000 is for ptt only they paid the ticket
32.Who are they
PA:Joo and not sure whether she has staff or not
33.Do you know anything about Joo
PA:She’s doing this thing to send women to foreign countries
34.Is she agent or she works for anyone
PA:She’s a contact person – she finds women for others
35.the women that she finds – what are their reasons to go to other countries
PA: to work
36.Do you know what type of work?
PA:she said to sale
37.sale what
PA:she said like sale person in department stare to work in restaurant
38.What about the sex industry
PA:I don’t know – I did no pass that system
39.You said you were going to find your bf if you go there what are you going to do – to work
PA:no no intention to find job or to work – would like to find him and if I know what happen I would come back
40.the money that you put to these people for the ptt, did you have debt
PA:yes, I have debt to them but I didn’t pay it back, we lost contact and I don’t think they will try to have it back because I couldn’t pass thru their system
41.How much did you owe them
PA:80,000 THB
42.when you went to airport did anybody assist you
PA:they arranged everything forme – we made appointment at the airport – they gave me ptt and ticket and let me go by myself
43.and where did you get stop
PA:at Thai Immigration
44.at that point – you were arrested by the Thai airport police
PA:yes
46. you paid that fine
PA:Joo paid it – she arranged until I was released by police and clear from the police system
47.Why didn’t they peruse this 80,000 THB to be paid back
PA:It’s an agreement that if I could not pass, I didn’t have to pay anything but if I pass, I had to pay back 80,000 THB
48. which I would say if you got to the USA you will have to work
PA:yes I think so
49.Do you know where Joo is now – or how to contact her
PA:no, I didn’t contact her and I throw away her number
50.where did you contact her
PA:in Bkk, around Ratchada area, restaurant – it’s a restaurant in Century Hotel – not sure about the name of hotel – located on Huay-Kwang Junction
51.Do you remember the name that was ni the ptt that u were to use
PA:can not remember
52.Can you give me the full name of the fr who can get thru
PA:only name “Narin” can’t remember surname
53.Have you heard from Narin
PA:heard that she married to an American and had no plan to come back
54.I have no further q. you have any question
PA:no – don’t know what to ask’
6. Oral evidence was given by the Applicant and by the Visa Applicant and in the case of the Visa Applicant, by telephone link to Thailand and with the aid of Thai interpreters. It may be noted that the hearing of this case took nearly four days, and despite the fact that there were only two witnesses. The case was first scheduled for hearing on 29 June 2005 (“first hearing day”) and 30 June 2005 (“second hearing day”); the matter was next heard on 19 July 2005 (“third hearing day”) and submissions were taken on 21 July 2005. In respect of the second hearing day, difficulties with the interpreter resulted in the hearing ending shortly after the luncheon adjournment.
part b – the evidence of the applicant; evidence in chief
7. Exhibit A1 (the witness statement of the Applicant) reads as follows:
“I, Gary John Street, Taxi Driver of 3/21 Flinders Road, Woolooware in the state of New South Wales 2230, do say on oath:
1.I am the fiancé of Mathurin Nonthasen a citizen of Thailand, born in Thailand on 3 January 1973.
2. I am an Australian citizen.
3.I first became aware of my future fiancé following an introduction through mutual friends and we had spoken on telephone from about the end of 2000.
4.When I travelled to Thailand for the first time in about July of 2002 I was met at the airport at Bangkok by Mathurin.
5.Thereafter our relationship developed and I then began to have strong feelings about her and I then sought to make some plans for the future.
6.On 29 July 2002 I applied for a tourist (short stay) visa for Mathurin on the basis that I had intended for her to travel to Australia with me so that she could see whether or not she wanted to live in this country. This was also an opportunity for me to introduce her to my immediate family, including my mother and my sister.
7.I completed the form 48R which now forms part of the section 37 T documents at T 4 and upon an examination of folios 41 to 45 inclusive I recognise my hand writing on that form. I specifically recall at that time completing the form and asking Mathurin questions in relation to the questions being asked on the form but my recollection is that her English at that time as it is now was poor. That application was refused on the same day that is 29 July 2002.
8.I then returned to Australia and on 26 November 2002 a fresh application for a tourist short stay visa was made and was approved.
9.On or about 29 November 2002 Mathurin entered Australia and resided with me at 3/21 Flinders Road, Woolooware NSW 2230.
10.I have examined the document at folio T9 of the T documents at folio 61 being the passenger card of Mathurin and I recognise my hand writing on that document. It is her signature but the balance of the document has been completed by me in my own hand writing.
11.When I completed the form at T9 I did not ask Mathurin any specific questions as I believed I knew the answers following the completion of forms on prior occasions. I did not specifically ask her the question on the passenger card as to whether she had any criminal convictions because on a prior occasion when I had completed a form where the same question was asked I had asked her “do you have any criminal convictions?” She had replied in a manner which made me think that she did not understand the question so I asked her another question, “have you ever been to jail?” Her answer to that question was “no”. I now believe that lead me into error.
12.When my fiancé came to Australia on 29 November she remained with me until her departure on the 20th of February 2003. During the time which she spent in Australia I introduced her to my mother, my sister and other family and friends and during the time she spent in Australia with me we resolved to spend our future together.
13.I then travelled to Thailand on the 24 of March 2003 and was met at the airport by my then fiancé.
14.I subsequently obtained a form 47SP which I then completed. I have reviewed the documents at folios 65 through to 85 inclusive and I can say in respect of the hand writing on that form with the exception of the signature that the hand writing is mine.
15.I recall the circumstances of the completion of the form as it took place a couple of days before the application was in fact lodged. I know that the date of lodgement was the 26th of March 2003 but the date of signing was 24 March 2003. I followed the procedure I had followed in the past with Mathurin by asking her questions and completing the answers but I can not specifically recall if I asked her every question as I knew information from the previous application. In relation to the information at part F which is at folio 73 of the T documents I do not specifically recall asking the questions as I had on a prior occasion asked Mathurin whether she had been convicted of any crime and my recollection was on the prior occasion she had indicated no and that it was then that I had asked her the question as to whether or not she had to prison.
16.At the time of the completion of the form I was aware that it was necessary to produce a Police Certificate and so when the Police Certificate was obtained and there was evidence of the commission of an offence I then knew that we were going to have some trouble.
17.I have reviewed the documents at folios 106 and 107 and I note that the Police Certificate is dated 12 May 2003 which is after the date of the lodgement of the application.
18.On 26 February 2004 my wife was interviewed. I was not interviewed at that time but remained at the Australian Embassy during the course of the interview. At the conclusion of the interview I enquired generally as to what the state of progress had been and was informed by the case officer that “everything appeared alright but do not ask me when you will get the visa”.
19.The next time I heard from the Department of Immigration was the receipt of a notice of intention to refuse a visa application which was dated 6 October 2004. The allegation, as I understood it was that there had been an attempt by my wife to conceal the fact of her criminal conviction and I instructed a Solicitor to act for me in relation to that matter.
20.I subsequently prepared a statement and I have reviewed the documents in the T documents at folios 173 and 174 and I can confirm the information contained in that statement.
21.At no stage do I believe that I was deceived by Mathurin with respect to her criminal history. I believe that I asked the right question but she didn’t understand and that subsequently I asked the wrong question which she did understand namely as to whether or not she had been in jail. The two questions are not the same. This is a mistake that has arisen because of my inability to speak Thai and Mathurin’s inability to be able to speak good English. There was not attempt by me or Mathurin to provide a false statement to Immigration in relation to her criminal history.
22.At the time of the making of the application I knew that a criminal history would be required. It does not make sense that I would attempt to mislead Immigration. This is the woman that I intend to spend my future life with and knew that it was important that we be honest on the application”
8. The Applicant is 54 years old; he has never been married; although he has had relationships they have never lasted for more than a few months. He described himself as a taxi driver (or in his words “only a taxi driver”) who is fat. The Applicant presents as a man who is down to earth.
9. The Applicant first met the Visa Applicant on the telephone having been introduced to her by a friend (Mr Wilson) who is married to a Thai woman. . This initial telephone call to the Visa Applicant resulted in further calls. The Applicant said that he was able to converse with the Visa Applicant because she has some English. He thought that her English may have improved a little during the period 2000 to 2002. (On one or two occasions during the hearing, the Visa Applicant answered questions in English without waiting for the question to be translated which leads me to think that she does indeed have a working knowledge of English).
10. Before ever travelling to Thailand the Applicant had been sending the Visa Applicant money. Over the previous year he had sent her about five payments of approximately 200 dollars each; amounting to approximately 1000 dollars in all. He said that he did so because she needed money and because she had told him that she looked after her son and her parents. He continued to send her money thereafter, by providing her with a credit card (a Visa card) which enabled her to draw money on it. She currently draws and has for some time drawn 7000 Baht per week using that card. It may be noted that the exchange rate is currently about 30 Baht equals A$1 although the Visa Applicant’s evidence was that the exchange rate has varied. (She referred to an exchange rate some years ago of 26 Baht equals 1A$)
11. The Applicant said that the Visa Applicant now lives and works in Bangkok where she has a packaging job in a factory usually described as a “cookie” or biscuit factory. Of the amount of 7000 Baht per week which she draws on his account, she sends 4000 Baht to her parents. He said that he supports her parents, her son and also her brother and in addition the latter’s wife and children. He described the Visa Applicant’s brother as a “lazy bastard”. The Applicant said that the Visa Applicant’s father did some form of manual work and that her mother probably worked. He said that he wanted to bring the Visa Applicant to Australia and to bring her son to Australia a year later. He indicated that he was prepared to continue supporting her parents but not her brother.
12. The Applicant travelled to Thailand in 2002 in order to meet the Visa Applicant for the first time. He said that he was worried that she might reject him having regard to the difference in their ages (she is 32) and the fact that as set out previously, he indicated that “I am fat and I am only a cab driver”.
13. The Applicant said that he is not gullible. He was at first wary as to the possibility that the Visa Applicant was using him. However he is now satisfied that this is not so; the relationship has endured for five years and “she cant act that well”.
14. In 2002 the Visa Applicant was living in Khonkaen Province, some seven hours by bus to the north of Bangkok. She came down to Bangkok by bus in order to meet him. They went to the Australian Embassy in Bangkok and obtained a short stay visa form which they completed at a hotel. He read her the questions; he filled in the application and then took it back to the Embassy. That application appears at Tp41 - Tp45. Question 23 at Tp43 asks for information as to criminal convictions and it was answered by ticking the box marked “no”. Question 13 (Tp42) asks whether there are any children who will be travelling with her; that question was answered “no”. Question 14 at Tp42 asked “Do you have a spouse, de facto, any children or fiancé who will not be travelling with you?” That box was ticked with a “yes” but in relation to details; some two words appear to have been inserted in the box in the context of “full name” and then those two words were apparently scratched out.
15. The Applicant was asked whether he was aware that the Visa Applicant had a child. He said that he knew that she had a child by another man (not her husband), who left her before the child was born. He said that she gave the child to her parents to look after and that they raised the child. He also said that they all live together and that she and her parents together look after the child. It may be noted that the child is a boy, Saengpet, who was born on 28 September 1996 (or 28 September 1995); he is referred to in these reasons as Saengpet or as “the child”.
16. The Applicant said that although he was able to speak to the Visa Applicant in English, she couldn’t read the Daily Telegraph headlines. When he asked her about criminal convictions, she first said that she did not understand. When he asked her whether she had a criminal record she answered “no”; she also answered “no” when he asked her whether she had ever been to jail.
17. The Applicant said that the Visa Applicant is a hairdresser. He asked her what she did and she said that she “cut hair”. He was under the impression that she did so in a small shop. This was known to him through the telephone conversations before he ever travelled to Thailand.
18. The Applicant said that they did not exchange photographs. She did not want to do so, according to him, because she was superstitious and believed that if she sent him her photograph she would never get to Australia; (evidence by the Visa Applicant some considerable time later indicated that Mr Wilson’s wife was given a colour photograph of the Visa Applicant, at a point in time before he ever made contact with her; it is possible that he did not see that colour photograph before he ever phoned her; it is equally possible and probably more likely that he phoned her on the strength of that photograph).
19. The Applicant went, so he said, to Thailand in 2002 with an open mind. Her first tourist visa application was refused, and which surprised the Applicant. The Applicant asked Mrs Johnson at the Australian Embassy why the application was refused and was told that it was because the two of them hardly knew each other. Mrs Johnson suggested that he submit records of telephone bills as to his telephone calls and also as to the considerable sums of money which he had sent to the Visa Applicant.
20. The Applicant stayed in Thailand on that occasion for about 10 days. During that period he visited her home in Khonkaen Province and met her family.
21. The original visa application having been refused, the Applicant returned to Australia. A further application for a tourist visa was then made (Tp54 and following). On this occasion question 15 was answered by including the Visa Applicant’s son Saengpet and citing his date of birth as 29 September 1995; (there were other references to his date of birth as being 29 September 1996). The Applicant was again referred to question 15 at Tp42 (the first tourist visa application). As previously indicated the same question was ticked “yes” and some (unclear and deleted) information appears to have been included.
22. The Applicant went to Thailand again in November 2002. The second tourist visa was applied for within a day of his arrival in Thailand and granted. The Visa Applicant came to Australia in 29 December 2002 and stayed in Australia for a period of about three months. (The Applicant said that Exhibit A1 was incorrect where it stated that she came to Australia in December 2002; in fact she came to Australia in November 2002 in that they travelled from Thailand to Australia together and spent Christmas together in Australia).
23. The Applicant said that he filled in the incoming passenger card (Tp61) after reading the questions and completing it as to convictions in the same way as he had done previously and in other words by denying that there were any relevant convictions.
24. The Applicant said that her stay in Australia was successful and that the Visa Applicant was introduced to his mother and sister (and sister’s family) all of whom liked her. While he was out during the day driving his taxi, she watched Thai videos and also played bingo. The Applicant said that he is comfortable with her and that neither of them wants children. He said that during the Visa Applicant’s visit to Australia he made up his mind that she was the one for him.
25. On 20 February 2003, the Applicant returned to Thailand and on 24 March 2003 the Visa Applicant travelled to Thailand to assist the Visa Applicant with her Prospective Spouse visa application (Tp64 – Tp78). That application was completed in a hotel in Bangkok (Tp78) which reflects an application date of 24 March 2002; this should correctly have been reflected as 24 March 2003. (See Tp78 and following pages).
26. The Applicant did not use the services of a migration agent. He had seen advertisements by United States agents indicating that in respect of such an application there would be a charge of 120,000 Baht.
27. The Applicant returned to Australia. He was under the impression that a police and medical check would take three months. The Visa Applicant told him that a police clearance would be needed. It was then that he first became aware of her convictions. She had told him that the police report disclosed convictions which she could not explain in English and accordingly he asked her to fax him a copy of the document. Tp109 indicates that she had two convictions described in Tp109 as follows:
“The first criminal offense (sic) was her possession of firearms and bullets. The result of the case was judged by Meenburi Provincial Court. She was sentenced to 6 months imprisonment and 4,500.00 Baht fine. Jail term was pending for 1 year.
…
The second criminal offense (sic) was her false statement filed at a police station. She was sentence3d by the Court of North Bangkok to pay the fine of 500.00 Baht. In case the fine was not paid, imprisonment would be imposed.
…”
28. The Applicant said that he was shocked because he did not know that she had a criminal record. He rang the Australian embassy but “never got any clear picture of what it meant”. He did not consult an agent. The certificate was submitted even though it contained information which was adverse. He said “we were prepared to wear the consequences”.
29. When he asked the Visa Applicant about the convictions she said that she thought that there would not be any record because they happened so long ago. (They occurred in 1999 not so very long before the first tourist visa application).
30. When the Applicant asked her how she had ever come to be in possession of a gun she said that she was in a group of people who had been out for a few drinks. They were stopped at a checkpoint and she was asked to take the gun on the basis that as a woman she would not be searched. That conduct was described as “incredibly stupid”.
31. As to the other passport conviction, he said that she had tried to get out of Thailand to go to the USA in order to confront the father of Saengpet to obtain financial support from him. The child’s father was referred to in a letter by the Visa Applicant (Tp113 – Tp115) as “Rod”; he was usually referred to during the hearing as “Roo”. The child’s father is a man of Laotian-Vietnamese origin currently living in the USA and his proper full name is Roo Van Nguyen. (He is henceforth and in brief referred to in these reasons as Roo). In order to leave Thailand she obtained a false passport. She said that she had decided to go to the USA to obtain financial support; the interview report referred to previously in these reasons, indicates that she intended to work.
32. The Applicant apparently believed the Visa Applicant’s explanation of the false passport offence. She had not (according to the Embassy interview report) received support from Roo. On this basis she was, so he would have the Tribunal believe, going to go to the USA to search for that man in order to obtain financial support for her son. She did not have any clear knowledge of his actual whereabouts. The cost of the false passport inclusive of visa and air ticket was 80,000 Baht, but, so the Applicant said, payable only if the application was successful. The passport was described as a photo-substituted passport. The Applicant did not know the detail, so he said, being handicapped by the language barrier.
33. As set out previously, an interview at the Australian Embassy took place in February 2004. The Applicant accompanied the Visa Applicant but was not permitted to be with her during the interview.
34. Following a “show cause” letter by the Respondent (Tp154 and Tp155) an answer was furnished in a letter by Anne O’Donoghue, on behalf of the Visa Applicant, in a letter dated 11 November 2004 (Tp158 and following). Ms O’Donoghue set out the “Background” in “Comments in Response” at Tp161 as follows:
“BACKGROUND
1.On 6 October 2004 DIMIA wrote to Ms Nonthasen and issued her with a Notice of Intention to refuse Visa Application under Subsection 501(1) of the Migration Act 1958.
2. The relevant ground to be considered is Subsection 501(6)(c).
3. The relevant matters of concern are:
·Ms Nonthasen’s criminal history
·Ms Nonthasen’s failure to declare her criminal history in her application to visit Australia for tourism on 29 July 2002 and 26 November 2002.
·Ms Nonthasen’s failure to declare her criminal history on the Incoming Passenger Card when she arrived in Australia on 29 November 2002.
·Ms Nonthasen’s failure to declare her criminal history in her application for migration to Australia on 26 March 2003.
4.Ms Nonthasen (age 32) met Mr Gary Street (age 53), an Australian Citizen, through a mutual friend in early 2002. The couple fell in love and Mr Street invited Ms Nonthasen to visit Australia.
5.Ms Nonthasen has an 8 year old child from a previous relationship.
6.Ms Nonthasen entered Australia on a tourist visa in November 2002. Her relationship with Mr Street blossomed and the couple decided to marry in the near future.
7.Ms Nonthasen departed Australia and in March 2003 applied to migrate to Australia.
8.Her current application is for a Prospective Marriage (Subclass 300) Visa.”
35. A psychologist’s report by Lisa Burns, a Clinical Psychologist, dated 9 November 2004, appears at Tp166 and Tp167. It refers, in relation to the Applicant, to excess use of alcohol in the past and stated that “his history may indicate that he is prone to subclinical episodes where depressive symptoms predominate”. The Tribunal was informed at a later stage that the Applicant did not intend to call Ms Burns or to ask the Tribunal to place any great reliance on her report, and the Tribunal does not do so.
part c – the cross-examination of the applicant
36. Having been given the Visa Applicant’s telephone number by Glenn Wilson, the Applicant telephoned the Visa Applicant for the first time in November 2002. The possibility of their marrying was raised when he first visited Thailand. He said “if she liked Australia we would get married”.
37. The Applicant said that he had been engaged previously to an Indonesian girl who said to him that she was obliged to choose between the Applicant and God and preferred to choose God.
38. The Applicant was cross-examined at some length as to Saengpet. He was referred to Tp89 which is a birth certificate of Saengpet and which records that his parents are Mr Somsri and Mrs Janta. Boxes two, three and four contained in Tp89 read as follows:
“2.
Mother
2.1 Given name: Mrs Janta Maiden name: Khonsuay
2.2 Identity number: 3-4009-00492-98-9
2.3 Age: 45 2.4 Nationality: Thai 2.5 Place of birth: Khonkaen, Thailand
2.6 Home address: 246 Moo 5 Tambon Nog-go, Granuan District, Khonkaen Province, Thailand
3.
Father
3.1 Given name: Mr Somsri Last name: Nonthasen
3.2 Identity number: 3-4009-00492-97-1
3.3 Age: 48 3.4 Nationality: Thai 3.5 Place of Birth: Khonkaen, Thailand
3.6 Home address: 246 Moo 5 Tambon Nong-go, Granuan District, Khonkaen Province, Thailand
4.
Informer of the birth
4.1 Given name: Mr Somsri Last name: Nonthasen
4.2 Identity number: 3-4009-00492-97-1
4.3 Age 48
4.4 Home address: 246 Moo 5 Tambon Nong-go, Granuan District, Khonkaen Province
4.5 Relationship with the child: Father
4.6 Document certified the birth: No
4.7 Notification of the birth: Yes
4.8 Informer’s signature: “
It was put to the Applicant that Saengpet’s parents are in fact the Visa Applicant’s parents. His answer was that he was sure that Saengpet is the Visa Applicant’s son and that he would be prepared to pay for a DNA test.
39. The Applicant said that he visited the Visa Applicant’s village on his first trip to Thailand; she lives in a village where they cut sugar cane. When asked about payments to her he said that there were five, six or seven amounting, in all, to more than $1000. He again said that following the original and first tourist visa application, he completed all forms based on what she told him on the first occasion.
40. Tp175 is a statement by Mrs Dorkmai Poona-ngam it reads as follows:
“My name is Mrs Dorkmai Pooga-ngam. I and my family appreciate in Mrs Mathurin Nonethasen’s consideration. She is very good to my family. When my daughter, Miss Maneened Poona-ngam had an accident, I was short of my money, I didn’t have even a single Baht, so I went to Mrs Mathurin and asked for borrowing her money in order to pay for the treatment. I told Mathurin about my fate and I would borrow her money 25,000 Baht.
Mrs Mathurin handed me 25,000 Baht and she said I didn’t need to borrow her. Before of her I had the money for my daughter’s medical treatment. She is so considerate. She could save my daughter’s life. I don’t know about what she did in the past. What I am aware about her now is she is very generous and kind.”
41. The Visa Applicant drew 25,000 Baht using the credit card to which I have referred in order to pay this amount. The Applicant said that “she just drew it”; he said also that “I was angry when I first heard it and I said don’t do it again”. That amount was over and above the amounts of 7000 Baht per week which she was regularly drawing out of his account.
42. The Applicant was cross-examined, also at some length, as to what the Visa Applicant herself earned. I do not think I need to go into detail; suffice it to say that the Visa Applicant earned comparatively small amounts, and in all events and at all relevant times much less than 7000 Baht per week. He said that she currently earns somewhere between 500 and 700 Baht per week out of which she has rental obligations of 2000 to 4000 Baht per month.
part d – the visa applicant; evidence in chief
43. The Visa Applicant’s witness statement (Exhibit A2), which was in fact tendered on the third hearing day, reads as follows:
“1. I am a citizen of Thailand
2. I was born in Thailand on 3 January 1973
3.I have previously travelled to Australia and last entered Australia on 29 November 2002 and departed Australia on 20 February 2003. At that time I had a temporary residence subclass 676 visitors visa.
4.Prior to my entry to Australia on 29 November 2002 I had applied for and been refused a visitors visa on 29 July 2002.
5.On 26 March 2003 I made an application for a visa to Migrate to Australia on the basis of my relationship with Gary John Street.
6.That application was signed on 24 March 2003 and was completed with the assistance of my fiancé, Mr Street.
7.The hand writing on the form is my husbands hand writing and although I do not read English or speak good English he was able to communicate with me through the processing of the forms but during the processing of the form and in particular the questions at paragraph 67 in relation to my convictions have been completed incorrectly.
8.There was no intention on my part to conceal the fact of my criminal convictions. I have 2 matters which disclose that I have broken the law in Thailand. The first offence was in relation to possession of firearms and bullets and I have offered a full explanation in relation to those matters in a letter which was written to the Department of Immigration concerning the case. The second offence was in relation to the filing of a false report and that crime arose out of circumstances surrounding an application for a visa.
9.I had not intended to conceal those offences and the failure to disclose them arose out of the failure of myself and my fiancé to communicate clearly.
10.I deeply regret this oversight and although I have criminal convictions I can indicate to the Minister for Immigration that I will not offend again.
11.I deeply love my fiancé and want to be with him and have a life with him and create a family.”
44. The Visa Applicant, when sworn, said that she did not have her witness statement with her; it is for that reason perhaps that it was not tendered at that time.
45. The Visa Applicant was born on 3 January 1973 and she is now 32 years old. She was previously married although she could not remember precisely when. Her former husband’s name is Mr Sriwoon Najai. They were divorced, she said, on 17 May 2002.
46. The Visa Applicant was referred to a letter dated 11 July 2003 (Tp113 and following) in which she said that she divorced her former husband because he was drunk and beat her. She was asked what her occupation was at that time. She said that this occurred in 1992 and when she was doing “cleaning and mopping”. It was put to her that she told the Respondent in that letter that she was then a housemaid in a garage. She agreed that she cleaned and cooked for mechanics working in a garage.
47. The Visa Applicant told the Tribunal that she met her husband in a beauty salon where she was working as an assistant to a beauty therapist. That beauty salon was in Khonkaen, and where she earned 3,500 Baht per month. The place in which the beauty salon is situated is not in fact where her family lives; they live about two and a half hours by bus away. She was 22 when she met her husband.
48. The Visa Applicant went to school in Granuan which is in Khonkaen Province and where she was a student of medium ability. She took regular English classes but where the teachers concentrated on reading and writing. The Visa Applicant left school when she was 13 years old.
49. The Visa Applicant recalled both tourist applications. She said that the Applicant filled them in having asked her questions and in English. When she was asked how she learned English she said “I look it up in dictionary that’s how I taught myself” and so if the Applicant asked her a question she would consult a dictionary which she had with her, so she said, when the forms were completed. (The Applicant had said nothing as to her having a dictionary for this purpose).
part e – the visa applicant; evidence in chief continued on 2nd hearing day
50. After leaving school at the age of 13 the Visa Applicant at first just stayed at home. At 16 and for three years thereafter she was a child minder. Another year at home was followed by a job in a factory which made window hooks and where she was a processor. By this time she was 20 and in Bangkok earning approximately 1500 Baht per month but in addition receiving board and lodging. Part of her salary was sent to her parents. Her father and mother were labourers in the cane fields; that employment was seasonal. She too worked as a cane cutter from time to time.
51. At that time her brother was not working. She said that she was sending 1000 Baht per month home to her family for their food. She did so by way of supplement to their income.
52. After a year at the factory in Bangkok she started work as a cleaner/housemaid at a garage in the Victory Monument area in Bangkok earning 2500 Baht per month and with board and lodging again provided. From that amount she sent 2000 Baht per month home.
53. The Visa Applicant was asked whether her brother ever worked; she said that “he just cut the cane with [her parents]. Sometimes he helped, sometimes he didn’t”. After two years at the garage when she was about 24 she met and then married Sriwoon Najai. Her next place of employment after the garage was at the beauty salon. There she earned 3500 Baht per month again with board and lodging provided. The beauty salon was, as I have said, two and a half hours away from her parent’s home and she would travel by bus.
54. The Visa Applicant said that she was married at the time when she took the job in the beauty salon. She had previously said in oral evidence that she met her husband while working in the beauty salon. Her relationship with her husband broke down because he drank and was violent. She was then sending 2500 Baht per month home to her parents.
55. Her next job was in a factory near Bangkok and where she was packing biscuits. She was about 30 when she took that job. She was asked how long she worked in the beauty salon and her answer was that the period was four years. It was put to her that she would then have been 28. She was asked whether she ever worked in a Karaoke shop; that question was not answered.
56. When she was asked how long she worked in the biscuit factory she answered that she “came and went”. She was paid, she said, according to how much she worked.
57. The Visa Applicant gave birth to Saengpet on 28 September 1996 and when she was 23 or 24. (As previously indicated the visa application indicated that he was born in 1995). She said that she was then working in the beauty salon. She did not work at the restaurant but merely went there in order to have a meal.
58. The Visa Applicant said that apart from the packing job and the beauty therapist job she had no other job. It was put to her that the packing job was casual and she was asked how she supported herself. Her answer was that she was then receiving 7000 Baht per week from the Applicant.
59. The Visa Applicant said that she packed cookies or biscuits after she gave birth to Saengpet. She currently works in that job and has done so for more than a year; her place of work is near Bangkok. She was asked whether she married the father of the child; her answer was “we cannot say I married him”.
60. In amplification of this rather tangled tale of money and employment matters, the Visa Applicant said that she is currently working in the cookie business earning 4500 – 5000 Baht per month depending on the availability of work.
61. The Visa Applicant said that she met the Applicant by telephone when she was 27 or 28. He started sending money about four, five or six months after the first call. When asked how much was sent on the first occasion she said “I cannot recall”. When asked the reason, she answered (inconsequentially) “he sent me once a month about 20,000 – 30,000 Baht”.
62. When she was again asked why the Applicant sent her money she said that it was because she told him that she was obliged to look after her parents and that she had a child to look after. She agreed she was earning 4500 – 5000 Baht per month but when it was put to her that it was unusual that a person she had not even met was sending her so much money, her answer was “it’s not unusual, he loves me”. She was again asked whether she was receiving 20,000 Baht per month because he loved her and she answered “yes” and again “yes” when it was put to her that payments started four to six months into the relationship, and before she ever met him face-to-face.
63. She was asked how much she received last month; she answered that the amount was 24,000 Baht. She said that she accessed the money through a machine using a card which he had given her when she was in Australia.
64. When asked about how she received money before the Visa card was made available to her she said that “sometimes he put money into my mother’s account”. She said that it was about one to two years before she had her own account.
65. It was again put to her that she had said that the Applicant started sending money about four, five or six months after the first call and she was asked whether she had asked the Applicant for money. The answer was “no, never, he was willing to pay. And this was because he had fallen in love with me”.
66. The Visa Applicant said that prior to July 2002 she had been receiving 7000 Baht per week through the use of the card. It was put to her that this was a considerable amount of money; her answer was “just to support”.
67. The Visa Applicant was examined as some length as to her earnings and agreed that the maximum she ever earned was 5000 Baht per month. Nevertheless she was getting 7000 Baht per week from the Applicant. She said that the whole family can live on income of this magnitude. Of the 7000 Baht per week she sent 3000 – 3500 Baht, per week, home. When asked what she did with the balance of the money she said “I buy personal things and food”; (she had said that the job provided board and lodging). When asked whether she had any savings she said “yes I have some but not much”.
68. Saengpet is cared for by the Visa Applicant’s parents and has been ever since he was born. She agreed there is a birth registration procedure in Thailand and that her parents registered her own birth. She said also that they registered Saengpet’s birth and she did not. When asked why not she said “because I did not want the child”.
69. The Visa Applicant agreed that the birth certificate of Saengpet shows her parents as Saengpet’s parents and that they are not his parents and that so the birth certificate is not true. She agreed that the Thai government would think that Saengpet was her brother. But when it was put to her that the Thai government had been deceived her answer was “I said they must do it because otherwise he can’t go to school”.
When asked why he couldn’t be registered as her child she said “I didn’t want him” but she agreed that she could have registered his birth if she had wanted to do so.
70. It was put to her that the registration of Saengpet’s birth as being the child of her own parents was dishonest and she said “I agree with that but it had to be done”.
71. The Visa Applicant described the incident relating to the criminal conviction as follows:
“Three or four of my friends and I went out. I drank some beer and afterwards on the way back there was a police check. My friend said the police wouldn’t search a woman and that’s why the gun was moved to me – I was a little bit drunk. I was very much drunk because I drank two or three bottles.”
The name of the owner of the gun was Prachak and the female friend of Prachak, who was also a friend of the Visa Applicant, was Nalin who, as will be noted, features quite largely in the further evidence of the Visa Applicant.
72. As regards the gun and bullet, a fine of 4,500 Baht and a jail sentence (suspended) was imposed in June 1999. She said that she paid the fine and with money provided by Prachak, the actual owner of the gun.
73. The Visa Applicant was asked to comment on the differing amounts specified in respect of the fines in Tp176, 177 as compared with those specified in Tp108 and Tpp109; she said that Tp108, Tp109 were correct.
74. The Visa Applicant said that she knew Nalin because they worked together at the same factory; this was a factory in which window-hooks were made. The Visa Applicant said that she appeared before the court. The Judge did speak to her about why a sentence was being imposed although she did tell the Judge about Prachak. The Judge nevertheless warned her that she would be sent to jail if convicted of another offence. She then went on to say that she waited outside the court and was told about the sentence outside the court.
It is not easy to credit her evidence that she waited outside the court and was then told outside the court about the sentence. Exhibit R1 deals with criminal procedure in Thailand in general terms and moreover in terms which would suggest that the procedure is rather fairer than that described by the Visa Applicant.
75. The Visa Applicant gave similar evidence as to the passport offence. The following evidence is taken from my notes
“When I was arrested I was taken to the police station and then they make paperwork and they charge me about the false passport
Did the paper work require you to attend the court?
On that day they took me to court and when I arrived at the court I didn’t go in and I didn’t actually appear in front of the judge.
I was not legally represented. I was fined 500 Baht. Somebody brought me a document showing me that I was fined 500 Baht because I had told the officer that the passport was false.”
part f – the visa applicant examination in chief continued on the 3rd hearing day
76. The third hearing day commenced with the (belated) tender of Exhibit A2 and the tender of Exhibit R1. Mr Levingston commenced by asking a number of questions as to the passport conviction.
77. The Visa Applicant said that she was obliged to go to court; she told the police prosecutor that she intended to plead guilty. She did not have a lawyer or other person assisting her. She was then told to wait outside and evidence was heard in her absence. She was then told (outside the courtroom) of the result.
78. The Visa Applicant was asked whether she remembered the interview at the Embassy on 26 February 2004. She remembered that Wayne Callahan was the interviewing officer and that there was an interpreter present. She said that she answered all the questions honestly and that she understood what the interpreter said.
79. In relation to question 21 in the interview report, the Visa Applicant said that the passport containing the USA visa was that of someone else but with her photograph inserted. She had, she said, applied to the USA for a visa and using her own passport but “I didn’t have enough statement so I didn’t get it”. That reference to “statement” was explained on the basis that she did not have enough money in her bank account.
80. The Visa Applicant said that she wanted to go to the United States to visit her boyfriend/husband. When asked whether she had his address she said “I used to have it but I didn’t have it now”. She also said that she had his address at that time. That person was, of course, Roo who is the father of Saengpet and who was two years old at the time.
81. Roo left the Visa Applicant before Saengpet’s birth. He had been a building contractor in Thailand and was, she said, a building contractor in the United States. He sent some money for Saengpet’s support; an amount of 10,000 Baht per month was stated as having been sent until Saengpet was two years old, when the maintenance stopped. The Visa Applicant said that she tried to contact Roo by telephoning him. She said that she spoke to him in the USA; when asked in what city she contacted him she answered “North Carolina”. When asked which city in North Carolina she answered “I don’t know”.
82. The Visa Applicant confirmed that when she rang the telephone number in the USA she was able to speak to Roo. He said that he didn’t have any money. She also said that she spoke to him “many times”. However, Roo did not send any money for Saengpet after he turned two; (she also said that she applied for a visa to the USA to obtain maintenance when Saengpet was two; on the basis that that evidence was in any way accurate, the arrears would have commenced only after Saengpet turned two), which would in turn indicate that at that time she had no reason to go to the USA to extract maintenance from Roo.
83. Her evidence was that she applied in her own name for a visa but that it was refused; when asked what she then did by way of work she answered “I didn’t do anything”.
84. She then had a conversation with her friend Narin. Narin is currently in the USA; see question 26 in the interview report. Narin said that she had a friend who could get the Visa Applicant a visa to the USA. That friend (also female) was Joo (see question 26 and following of the interview report).
85. Joo asked the Visa Applicant for a photograph and then inserted it in a passport in substitution for somebody else’s photograph. That other passport contained a USA visa.
86. The Visa Applicant said that she knew that this was wrong and she knew that it was a criminal offence. She said that “it was necessary”. It was put to her by Mr Levingston that when necessary she was prepared to break the law. She answered “if I don’t do it my child would starve to death”.
87. The Visa Applicant said that the false passport and visa cost 35,000 Baht and that Joo paid that amount. When asked why Joo would be prepared to pay it, she said “when I arrive over there I have to pay her back”. When it was put to her that she was going to the USA as a tourist and would not be allowed to work she said “I was going to get it from Roo”.
88. The total cost of the passport, visa and air ticket (return ticket) was 80,000 Baht. The Visa Applicant said that at that time the Australian dollar equivalent was about A$2600. When it was put to her that she was prepared to enter the US illegally and to work in the US illegally she said “not illegally”.
89. The Visa Applicant said that if she couldn’t locate Roo she would get the money from a friend. When asked what friend she answered that the friend was Narin. Narin is, of course, the person who introduced her to Joo and whose boyfriend gave her the gun. When asked why Narin would pay 80,000 Baht for her she said “because she is a friend”.
90. The Visa Applicant was then referred to question 35 of the interview report. Her answer was “I don’t know about this”. When Mr Levingston proposed to read her the question in full, Mr Higgins objected on the basis that the question was leading.
91. The Visa Applicant said that she would enter the USA in Los Angeles. Narin would meet her at the airport and she would stay with Narin “for a little while”. She said that North Carolina is a long way away – “six hours to fly from LA”. She agreed that she planned to enter on a false passport and then locate Roo (six hours away by aircraft) and make him pay support for Saengpet. When asked why she thought he would pay if she turned up in North Carolina her answer was “it’s not certain”. Roo had told her that he had no money and also that he had a girlfriend. However, she said, she was going to see him “to make a plan”.
92. However, the plan failed because she was stopped at Bangkok airport. She agreed that she owed Joo 80,000 Baht; when asked whether she had paid Joo she said “not yet”. She also said that Narin did not guarantee payment of her debt. She then said that she only had to pay if she in fact went to the USA. She said that this was her agreement with Joo and when asked why Joo would take this risk she said “she lost that money but she can get more”. And as to why Joo would take the risk her answer was “I don’t know”. Joo has not, according to her evidence, asked her for any money and the Visa Applicant also did not know whether Joo had asked Narin for payment. She also did not know whether any part of the air ticket cost was refunded and if so to whom. (The Tribunal does not know who paid for the air ticket in the first place; it was presumably a return ticket since the USA would not have admitted a tourist without a return ticket).
93. The Tribunal noted at this point, as question 28 of the interview report indicates, that the Visa Applicant said at interview that she was not in contact with Narin; she responded that “no, it’s a long time ago”.
94. I do not think that it is necessary for me to go into detail as to the evidence as to Saengpet. The Visa Applicant said that she didn’t want the child. Her father chose his name and her parents registered his birth. At that time she was married to another man and separated from him; the father was Roo. She said that she could have registered the birth showing the father as Roo but did not do so “because Roo is in America”.
95. The Visa Applicant was asked why it was decided that Saengpet be registered as the child of her parents. She said that this was because she didn’t want the child and without registration Saengpet would not be able to attend school; (it may be noted that registration took place three years after the birth). She said that she was unhappy about being a mother. Although Tp68 (the visa application under review) discloses Saengpet as her son, Tp42 (the first visa application) did not.
96. The Visa Applicant said that when she met Roo in 1996, she was working in a karaoke bar (she had not mentioned the karaoke bar previously and ignored a specific question put to her as to whether she had worked in a karaoke bar). She said that she started working in the karaoke bar as a waitress in February 1995. After 10 months at the karaoke bar she stopped work (and because she was pregnant) she then stayed home for about two years and her next job was as a beautician’s assistant. At the karaoke bar she earned 3000 Baht per month but, so she said, with tips this could rise to as much as 9000 Baht per month. She said that in her previous evidence she forgot to mention the karaoke bar.
97. She had previously said that she met Roo in a restaurant where she was having a meal. She said, at this point, that she met him in the karaoke bar as a customer and that the karaoke bar was in Bangkok. They became lovers and she had his baby but, as I have said, he left her even before Saengpet was born.
part g the cross-examination of the visa applicant – 3rd day
98. The Visa Applicant was asked if she had written any letters to the Australian Embassy. She replied that she had received letters. She was then asked whether she recalled the letter at Tp113. She agreed that she did; she said also that its contents were true; moreover she reiterated that all her previous evidence was true. The first page of that letter Tp113 reads as follows:
“I, Mrs Mathurin Nonthasen, came to Bangkok around the first part of year 2536 (1993) to work as a housemaid in a garage in the Victory Monument area. After a while, I met Mr Sriwoon Najai who worked as a mechanic in my work place. We saw each other everyday, helped each other with the work and fell in love. Around mid-year 2536 (1993) we decided to live together but we did not register our marriage then. After that we asked permission from our boss to move out to live in our rented room but we still went to work for him.
At the beginning, my common law husband was very good. We decided to register our marriage in the middle of year 2537 (1994). After my husband started to change. He went out to have fun until late at night and came home drunk everyday. When he was drunk he picked a fight with me and it developed into a physical abuse. I tried to put up with the situation because I thought once I had a husband, I should try to make out family life last to the end. I did not want to get divorced for fear of losing face among my family and friends. Later on my husband was drunk everyday and each time he beat me up. I put up with the situation until the beginning of year 2538 (1995) when he was drunk and beat me up severely. I then sneaked out and ran away from him on that day. I did not take anything with me except 2-3 clothes and money enough to pay for my bus fare.
After leaving my husband, I went to stay with a girl friend in Ratchada area for one week without doing any job. I did not have any money on me and I did not want to be a burden on my friend so I asked her to find me a job at the same place where she worked. It was a job in a Karaoke. I decided to work here in order to have an income to live on and to send to my parents upcountry.
Around the end of year 2538 (1995), I met Rod, the father of my son, Master Saengpet. Rod is a Laotien-Vietnamese living in the States. He visited my work place and told me that he came to visit his mother in Laos. The next day Rod came to my work place again and asked why I came to work in a karaoke shop like this. I told him that I had obligation to send money home to support my parents upcountry. On top, I had to support my younger siblings to go to school. He told me he was sorry for me and would like to help. He even asked me to go with him to visit his mother in Laos. I told him I could not to on account of my work. Besides I just met him and I was afraid to go. He did not mind and said that he would come to see me again after visiting my mother.”
99. The Visa Applicant said that she first left her village and went to Bangkok in 1998; she then amended that date so as to refer to 1993.
100. I do not think that I need to detail at length the Visa Applicant’s evidence under cross-examination as to where she worked and when. Suffice it to say that it was inconsistent with her previous evidence and also for that matter with Tp113. There is one aspect which deserves particular mention. On the first hearing day she made no mention of a karaoke bar and said that she met Roo at a restaurant. On the third hearing day she said that she met him at a karaoke bar. When it was pointed out to her that she had given two versions, one of which could not possibly be correct, she changed her evidence yet again and said that she met him at the restaurant and that he then followed her to the karaoke bar. Further cross-examination revealed other inconsistencies. As one example, she described herself as a hairdresser in her visa application dated 28 July 2002 (T44). In her previous evidence she had said that she was at that time working as a packer in the biscuit or cookie factory. She said “I’m confused with all these questions” and a little later “because I work in so many places I forgot”.
101. Inconsistencies in her evidence as to how and when she met Roo were explained by “I am confused because is not something I like to remember”. When confronted with her failure to disclose the karaoke bar she said it was not a long period. She then said, when it was put to her that 10 months is not insignificant, “I did not consider it long”. There were other inconsistencies. One might have thought that she would remember the karaoke bar given that it was at that place of work that she earned considerably more than she ever earned at any other place of employment.
102. Her evidence as to the parentage of Saengpet was also confused and confusing. She said eventually that Saengpet thinks that he has two mothers. She said, moreover, that although she did not want Saengpet when she was born, she did want him now.
103. The Visa Applicant said in evidence that she last saw Saengpet about three months ago. She is working in Bangkok and sees him occasionally. She said also that she is working in Bangkok in order to earn money to enable him to attend school (this evidence was particularly untruthful having regard to the substantial amounts she is receiving from the Applicant). She said that Saengpet was best off with her mother because her mother isn’t working. She said also that “I am tired when I am at home – I have to look after them all”.
104. It was put to the Visa Applicant that she could not now be in financial difficulties since the Applicant’s support is, by Thai standards, high. She insisted that “I have to work to send him to school”.
105. The Visa Applicant’s name was not originally Mathurin; there were two name changes one, at least, instigated through the advice of a fortune teller (Tp87). The second change was, so she said, made by her mother when she was 18 or 19 years old.
106. Further evidence as to when she worked and where served only to increase the mounting confusion. The most that can be said is that the Visa Applicant sometimes worked in Bangkok, sometimes near her parent’s home and sometimes did not work at all. Her parents were casually in the cane fields. It would seem that her brother may have worked very occasionally or alternatively did not work at all. When she worked (and it was never clear when she did) she earned varying amounts usually around 3000 or 4000 Baht per month at most, excepting only in the case of the karaoke bar where, with tips of maximum size, she might have earned as much as 9000 Baht per month. She insisted on various occasions that she was responsible for the support of the entire family and including Saengpet, her son, although she sees him occasionally only.
107. The evidence as to Narin was equally confused and confusing. She met Narin at the window factory years ago. Through Narin she became involved in the gun offence. Narin introduced her to Joo. Although she told the Embassy at interview that she had lost touch with Narin, her evidence before the Tribunal was that she could take a plane to Los Angeles, live with Narin and that somehow or other Narin would get her to North Carolina (but with no city or place in North Carolina specified) in order to confront Roo. Narin apparently got to the USA through one of Joo’s passports and is now living illegally in that country.
108. As to how she met the Applicant was the subject of other confused evidence. Montian, who is now living in Australia with Glen Wilson (now her husband), was a customer in the beauty salon. The Visa Applicant made it clear to Montian that she would like to live in Australia. This resulted in the telephone introduction to the Applicant. She agreed that Montian was aware of her desire to meet an Australian in order to move to Australia. In stark contrast with the Applicant’s evidence as to a photograph she gave Montian so she said a colour photograph of herself.
109. The money flow from the Applicant commenced after six months. It was prompted by the Visa Applicant who told the Applicant that she had a son and other family members and that she had to support all of them. She agreed that she was receiving 11,000 Baht per month until she obtained the Visa card, when the support amounted to more than 28,000 Baht per month. When it was put to her that this was more than five times what she had ever earned at the highest point of her earning career (10 months at the karaoke bar) she said “is it really?”.
110. It was put to the Visa Applicant that the family managed before she ever met the Applicant; she insisted that she had to support everyone; parents, son, brother, in laws and nephews and nieces. She agreed that this obligation existed even before she met the Applicant but that “everything has gone up”.
111. The Visa Applicant’s previous evidence inconsistent as it was paled by comparison with the evidence of the attempted trip to the United States. She said that Narin would take her to North Carolina “maybe to fly”. She did not know where in North Carolina the Applicant lives. For that matter she did not know Narin’s address although she said that she knew her telephone number.
112. The thrust of her evidence may be summarised in this fashion. She would go to the United States and be met by Narin (according to the interview report she had lost touch with Narin). Somehow or other she would get to North Carolina. Somehow or other she would find Roo and get him to pay her not only the 80,000 Baht from a passport, visa and air ticket but also maintenance for Saengpet. Her evidence was at times in direct conflict with answers to questions at the interview (see in particular questions 24 and 28). She said that she did not intend to work in the USA. This too was in conflict with her evidence at the Embassy. It was at this time that she was confronted with her answers to question 23 and 25 which state that she had not applied to the United States Embassy for a visa in contrast with what she told the Tribunal, namely that her application was refused for lack of means. It was at this time that she denied the truth of some of the interview record. The following exchange took place:
“You told the department that you had made no application; which story is true?”
“I said I applied but didn’t get it”
“You didn’t inform the department of any application, you told them the opposite. Which version is true?”
“They didn’t ask me whether I tried to get a visa”.
“I did tell them but the record is incorrect, I think it’s wrong”.
“Why don’t know where he is in North Carolina?”
“Because he told me North Carolina.”
You told the Tribunal earlier today that you know his address.’
“When?”
“This morning. You said you wanted to go to the United States to visit your boyfriend and that you had his address.”
“At that time I knew but I don’t have it anymore”.
“She agreed that her visa to the US (the false visa) was for three months only and that she knew that she was behaving illegally. She said I knew but I was so angry – I intended to go and come back”.
113. The Visa Applicant said that notwithstanding that Roo had taken up with another woman she thought that she could get money from him. She thought that the other woman would stop “controlling him”. She also insisted that she acted out of anger because of the fact that Roo had another woman. When it was put to her that she had previously said that she had wanted to go to the United States only to obtain money, a different reason, she said “they are both reasons. My son needs to have some milk. If I didn’t have a child I wouldn’t be struggling”.
114. In a letter to the Australian Embassy (Tp178) dated 11 November 2004 she said that what she had done was done in ignorance. When asked what the ignorance was she said “because I didn’t know the law. If I got caught it would be in my history”.
part h – analysis of the evidence
115. Even by the standards of this jurisdiction where truth is sometimes a stranger, the evidence of the Visa Applicant was quite remarkably untruthful. As to the passport conviction it is very difficult to accept that evidence was heard while she waited outside. Equally her evidence as to the gun conviction was improbable. All of her evidence as to the false passport was widely improbable. The truth on the balance of probabilities must be that she was trying to get to the United States for financial reasons. The father of Saengpet had deserted her even before Saengpet was born; (this assumes that she is Saengpet’s mother which is far from clear). She said that he provided some support; however there was no evidence other than her own word that Roo ever provided any money. The evidence as to how she would somehow find her way to North Carolina, somehow find Roo somewhere in North Carolina and then somehow extract large amounts from him is incredible. So for that matter was all of the evidence as regards Narin and Joo. All of the evidence as regards the application for a United States visa cannot be accepted in the light of her Embassy interview statement that she made no such application. In closing submissions on the fourth hearing day Mr Higgins contended that it may be that Roo does not exist and has never existed; this is, in the Tribunal’s view, a real possibility.
116. As to Saengpet, the Tribunal does not know whose son he is; he could be the son of her parents and thus her brother as his birth certificate states. It is also possible that he is her son. The Applicant had said that he would pay for a DNA test; why was no DNA test effected and why was no certificate provided? Evidence could have been given by her parents as to Saengpet’s birth and for that matter, evidence could have been given by Narin as to other relevant matters if they are still close friends as the Visa Applicant said they are. None of this evidence was provided. Evidence as to financial matters could have been furnished in the form of bank statements but it was not. She has spent far more time in Bangkok than at her parent’s home or near her parent’s home. She left Saengpet when she came to Australia and would have done so if she had managed to travel (illegally) to the United States. It is at least equally conceivable that Saengpet is her brother and not her son at all.
117. The evidence of the Applicant is much more difficult to evaluate. He is much older than the Visa Applicant and he does not think that she is using him. He presented as a solid person and not as a person likely to harbour illusions. Why then was he sending money (and significant amounts) to a woman he had never met? The Applicant said that he had never seen a photograph of the Visa Applicant because she would not furnish one for reasons of superstition. That evidence was not supported by the Visa Applicant who furnished Montian with a colour photograph precisely for the purpose of using it to get her to Australia. Is all of this explicable on the basis of blind love? I do not know the answer. I would think that the Applicant gave evidence which was, for the most part but not always, truthful and at times may have been coloured to some considerable extent. I would be inclined for the most part to accept his evidence in preference to hers but not in respect of the photograph. It is likely on the balance of probabilities that in conflict with what he said in fact, he did have a photograph before he even phoned her. It is very likely that the Visa Applicant has been using the Applicant.
118. The Visa Applicant’s evidence throughout was mostly untruthful. The Applicant said that all of his family liked her. There was no evidence by any of them. There was also as I have said no evidence by any of the Visa Applicant’s parents or Narin. There was no bank evidence.
119. Before the Visa Applicant ever met the Applicant she and her family were living on their combined earnings. All of them except perhaps her brother were working at least part of the time. After she met the Applicant they had a source which produced significant support. Her evidence as to requiring milk for her son, school fees for her son and the like was all simply unbelievable.
120. The Visa Applicant committed a number of breaches of section 234 of the Migration Act 1958 (“the Act”), in her visa applications, in her prospective spouse visa application, in her embassy interview, in the landing card and importantly in her evidence before the Tribunal. There can be no doubt but that she fails the character test. It is perhaps relevant to note that Mr Levingston commenced by asking the Visa Applicant to be sure to tell the truth in that the truth might assist but that untruthfulness would certainly have an adverse effect. That warning had no result. The penalties prescribed for breaches of section 232 of the Act are such that (and see also clause 2.6 of Direction 21) I must regard her conduct as very serious.
part i – Direction No. 21 - Visa Refusal and Cancellation under section 501 (“Direction 21”)
121. In this Part I references to numbered clauses relate to numbered clauses in Direction 21.
122. The primary considerations are contained in clause 2.3 of Direction 21 as follows:
“In 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.”
123. Clause 2.3 of Direction 21 must be read in conjunction with clause 2.5 which reads as follows:
“The 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).”
124. In a recent decision Moon and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 625 I referred to a number of decisions of this Tribunal dealing with relevant primary considerations. Clauses 63 to 68 of Moon reads as follows:
“63. …I refer in this context firstly to Beale v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714 (a decision by Deputy President Wright); clause 33 reads as follows:
33. In considering whether or not there is a 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.
64. I refer next to In Soo Cho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 112 which was one of my decisions and where clause 46 reads as follows:
While I regard the risk of recidivism (and see clause 2.5(b)) as not being high, it cannot be discounted entirely having regard to her illegal conduct over so many years. Her total disregard of Australian law is demonstrated in the starkest possible terms by what happened when her husband was detained in November 1989. She was allowed to remain to enable her to care for her children but subject to conditions which, as I have indicated, she simply ignored.
65. In Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935 clause 47 reads:
47. The Applicant in his evidence spoke of others obtaining false passports in South Africa and travelling to countries using the false documentation. He spoke of people to his knowledge living in Australia by virtue of the use of false identity material. These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
66. And in Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575 clause 26 reads:
26. 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. Ms Lumagbas made a false application and compounded this by failing to notify the Department or other parties of this fact, despite having had ample opportunity to do so. The groundless application was considered and pursued up to the level of personal intervention by the Minister. Knowing that there was no basis for this course of conduct, Ms Lumagbas showed a complete disregard for Australia's migration laws. All this was done for no reason other than that she wished to be able to work in this country and was looking for short cuts to that goal.
67. See too and in much the same sort of context Susilo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 495 where clause 144 reads:
144. In relation to the expectations of the Australian community, I accept that there may be a minority sympathetic view that the Susilo parents should after all this time be allowed to stay here. That view would necessarily be based on the proposition (at least in part) that the law can be overlooked if only one can evade the authorities for long enough. Expressed thus it is easy to see how fallacious it is. In my view the majority of the Australian community knowing the facts and in particular the manner in which Benny returned to this country after being deported it would expect that the visa be refused.
68. I refer also to Hanna v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 257 where clause 33 reads:
33. The Tribunal does not accept that the misleading information was as a consequence of an inadvertent failure to disclose. The non-disclosure was intentional. It may well be that it was at the behest of the Review Applicant that the Visa Applicant behaved as he did. It may also have been at the behest of his family. The fact is however, that he did behave dishonestly and did not disclose relevant information and maintained the non-disclosure even up until the second interview with an officer of the Respondent. It provides no assistance to the Visa Applicant to say that he relied on the Review Applicant and his family's advice. It was he who signed the application. It was his application. As earlier mentioned, he well knew that what was contained in the application was not correct and that he had not disclosed information that would be relevant to a consideration of the matter by the Respondent. It is of little assistance to him to say that he now sees the error of his ways. The misleading information was put to him by an officer of the Respondent only after extensive investigations had been conducted. Such investigations were not assisted by the Visa Applicant not disclosing the name that he had used whilst in Switzerland.”
125. The Visa Applicant does not in my view present a significant threat to Australia’s security and the danger of recidivism is not unacceptably high although her conduct over so long a period in respect of the law of Australia (and also that of the Untied States) must have the effect that neither consideration can be totally discounted.
126. Deterrence is always a difficult factor; it is doubtful whether this decision will deter other young Thai women seeking to gain entrance to Australia for economic reasons but to grant the visa would send entirely the wrong message.
127. In respect of clause 2.12 I very much doubt whether the Australian public would approve the grant of a visa to a person such as the Visa Applicant and in these circumstances who has behaved in the manner set out in these reasons. Her conduct was, as I have said, very serious within clause 2.6.
128. As to clause 2.17, the refusal of a visa will undoubtedly cause hardship to the Applicant. I do not know how much he knew at the time of the visa application. I am prepared to accept in his favour that he might not have known very much. His evidence was suspect, as I have said, as regards the absence of a photograph. There was no evidence before the Tribunal as to what he will do if the decision is affirmed. I accept that for him to move to Thailand would be difficult indeed. The possibility of their being re-united in New Zealand where he could presumably work as a taxi driver was not explored. As to whether the relationship will survive the refusal of this visa is unclear.
129. This is not a case in which the discretion can be exercised in favour of the Visa Applicant and accordingly the decision under review must be affirmed.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: A. Krilis Associate
Date/s of Hearing 29, 30 June 2005, 19, 21 July 2005
Date of Decision 19 August 2005
Solicitor for the Applicant Mr Christopher Levingston
Solicitor for the Respondent Mr Rohan Higgins
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