Tang and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 928

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1299

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HEING TANG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date19  September 2003

PlaceSydney

Decision The decision under review is affirmed.

[The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration -  spouse visa – character test -  

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Re Goldie and Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Re Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA 935

REASONS FOR DECISION

19 September 2003 The Hon C R Wright QC., (Deputy President)  

1.      Ly Huang Chhay, the visa applicant is the wife of Heing Tang, the review applicant.  They were married in Sydney 24 March 2002.    They are first cousins.   The visa applicant is a Cambodian citizen.   She was born in Cambodia on 2 November 1974 and is now aged 28 years.   The review applicant was born in Cambodia on 17 June 1975 and emigrated to Australia with his parents in August 1981.   He too is aged 28 years and is an Australian citizen, living and working as a salesman in Sydney.

2.      On 29 March 2002, shortly after the marriage, the visa applicant who had entered Australia on a visitor’s visa on 15 February 2002, returned to Cambodia where she resumed her employment in Phnom Penh as a receptionist at the “Big Luck” Hotel.

3. On 29 May 2002, the visa applicant applied for a Subclass 309 Spouse Visa to re-enter Australia. She was sponsored by the review applicant. On 13 August 2002 the respondent’s delegate in Phnon Penh refused the visa applicant’s application on character grounds under s501 of the Migration Act 1958.

4.      On 4 September 2002, the review applicant lodged an application to review the delegate’s decision with the AAT.   The application was heard in Sydney on 30 June 2003.   Nicholas Poynder of counsel represented the two applicants.  Christos Mantziaris appeared for the respondent.   The review applicant appeared in person and gave viva voce evidence.   The visa applicant gave evidence by telephone from Phnon Penh, assisted by an interpreter.   In addition the Tribunal received into evidence.

(i)        Exhibit “A”     -          Section 37 (“T”) documents.

(ii)Exhibit “B”   -       Statutory declaration by review applicant dated 20.6.2003

(iii)Exhibit “C”   -       (Part of Exhibit A) – Statement signed by visa applicant dated 22.6.2003

(iv)Exhibit “D”   -       Migration Review Tribunal – Transcript of hearing 19.12.2001.

(v)Exhibit “E”   -       Decision of Migration Review Tribunal dated 15.1.2002.

5.      At the conclusion of the hearing I requested counsel for the applicants to consider the presentation of further photographic evidence.   As a consequence, on 7 July 2003 Mr Poynder provided:

(a)A folder containing original prints of all photographs of which there are photocopies at pp 151-169 of Exhibit “A” (Exhibit F).

(b)Strips of photographic negatives of pictures taken at the applicant’s wedding on 24 March 2002 (Exhibit G).

(c)A letter addressed to my associate containing an explanation of the origin, existence or non existence, date markings and other material in the prints and negatives (Exhibit H).

The significance of this material will be discussed later.

6.        The visa applicant had not been to Australia before 15 February 2002, but she had made several unsuccessful attempts to do so.   The history of her applications may be summarised as follows:

20/4/94Visa applicant refused a subclass 214 Special Assistance Category Visa.

24/3/95Visa applicant refused a subclass 105 Skilled Migrant visa.

29/1/96Visa applicant refused a subclass 676 Tourist visa.

12/9/97 Visa applicant refused a subclass 214 Special Assistance Category visa.

13/4/98Visa applicant refused a subclass 105 Skilled Migrant visa.

10/8/00Visa applicant refused a subclass 560 Student visa under a false identity of SOK Leang.

22/8/00Visa applicant refused a subclass 560 Student visa under a false identity of SOK Leang.

19/7/01Visa applicant refused a subclass 676 Tourist Visa.

4/10/01Visa applicant refused a subclass 679 Sponsored Family Visitor visa.

15/01/02Migration Review Tribunal overturns the decision made on 4/10/01.

4/2/02Visa applicant is granted a Sponsored Family Visitor visa.

7. In opposing the application for review the respondent has raised several issues bearing upon the issue whether or not the visa applicant passes the character test prescribed by s501, having regard to her past and present general conduct (s501(6)(c)(ii)).

8.        In respect of the visa applicant’s past conduct, it is contended by the respondent –

(a)That the visa applicant knowingly lodged 2 applications for student visas using a false identity of SOK Leang in an attempt to secure a more favourable outcome for her migration applications.

(b)That the review applicant and his family were aware of and financially supported the visa applicant’s fraudulent applications.

(c)That in her previous visa applications in 1996 and 2001, the visa applicant falsely declared that her mother was “missing” in an attempt to secure a more favourable migration outcome.

9.        In respect of the visa applicant’s present conduct it is contended by the respondent:

(a)That the applicant’s marriage is a contrived (i.e. non-genuine) marriage entered into in order to gain migration advantage.

(b)That in making application for a provisional spouse visa the visa applicant has made several false and misleading declarations viz:

(i)At question 14, regarding whether she had any other names by which she had been known (including aliases) she failed to provide any answer and from this it should be inferred she was attempting to mislead the delegate regarding the SOK Leang identity.

(ii)At question 6, she falsely claimed that she had only been refused one previous entry permit (a "family reunion application”).   She failed to disclose that on 8 prior occasions she had applied for and been refused visas, including the 2 SOK Leang applications.

10.      In Exhibit “C” the visa applicant explains her previous applications in the following terms:

“I have made many applications to come to Australia.    However, I did not fill out the application forms myself because I do not speak English.   The main person who helped me with the applications was my uncle in Australia Veng Ang Chhay.  The forms were always filled out for me and I was asked to sign them before they were lodged.   They were always in English so I did not know what was written and did not read them.   My uncle would send over the form and ask me to contact his friend in Cambodia, Sovann, to help complete the forms for me..   Sovann would complete the forms and then ask me to sign them before lodging the application.   As far as I know my uncle Veng Ang Chhay paid the application fees.   I was never a part of that, it was all done for me.   In my visitor application, I understand that my father in law Koc Seng Tang also helped with the application.

Some of my previous application forms said that my mother was “missing” for a long.  This is not correct.   The only time when my mother was missing was a short period of a few months in 1994 when she was on the Vietnam/Cambodian border and she met a friend who had seen her father and who told my mother and her father was still alive.   My mother then went to look for him in her home village in the area of Meemut.  This period of my mother’s absence was for about 2-3 months when my brother and I were not aware as to where she was.   My brother and I then returned to Cambodia in 1994 and eventually found our mother with her father in her home village and Meemut area.

I think that when my uncle Veng Ang Chhay lodged an application for a Special Assistance category visa for me, the person who assisted my uncle in preparing the application advised my uncle that my brother and I should pretend that we had been separated from my mother and that we were like orphans as it may assist our immigration application.   I think that the person who filled out the later forms merely copied the details from previous applications including the answer that my mother was missing.   Again, because I did not read the applications because I don’t read English, I didn’t know about these answers or how to correct them.   I also found out when my spouse visa was rejected recently that there was incorrect information about my mother being missing in my previous applications.

My student visa applications in August 2000

The circumstances regarding my two applications for a student visa in August 2000 under the false name Sok Leang were as follows.   I had previously applied to come to Australia under my real name, Ly Huang Chhay, but these applications had been unsuccessful.   A friend who I knew from English classes I was attending told me that she knew someone who could help me.   It is no uncommon for people in Cambodia to talk about migrating overseas and this friend of mine said that she had been approved to migrate to America (she is now living in America).   She said that she could introduce me to a person who had assisted one of her friends who had been able to migrate to America.   My friend also told me that the person had assisted many people to migrate to other countries.

My friend then arranged to take me to meet a lady I came to know as Nar.   We met for about 20 minutes at the first meeting.   I told Nar that I had tried to migrate to Australia but had been unsuccessful.   Nar said that she could assist me.  She told me that her cost would be about US$8000.00.   I agreed to the fee believing that my relatives in Australia would come up with the money.   Nar told me that one of the first things she needed to do was to arrange for me to take some passport size photographs and to make a new passport.

A few days after our meeting Nar telephoned me and said she would meet me outside a hotel so she could take me to have passport size photographs taken.   She told me that I had to change my name because I had applied unsuccessfully for migration in the past.   She also told me that I also had to lower my age to have a better chance of obtaining a Student visa.

Nar then took me to a building where I was asked to complete an application for a new passport.   We then parted.   Nar collected the passport on my behalf at a later date, but I did not see the passport until the day I was asked to submit my application and passport to the Australian Embassy.

Nar telephoned me at one time to tell me that she needed the name of an Australian citizen relative who was the person I would stay with when I would be studying in Australia.   I gave her the name of my uncle, Ngo Loang Tea, who is married to my father’s younger sister.   I rang my aunt in Australia and she faxed a copy of my uncle’s Australian Citizen document, which I took to Nar.

Some weeks later Nar rang me to arrange for us to meet again.   When I arrived at the meeting place I met two men who were with her.   They introduced themselves but I do not remember their names.   Judging by the way they were dressed I assumed that they worked in an office.   They told me that my paper work was nearly ready and gave me a list of questions that I should practice.   They indicated that the Australian Embassy was likely to ask me such questions when they interviewed me.  At this stage I had not seen the paperwork.   One of the men also told me that I should tell the Australian Embassy that my parents were pharmacists.

A few weeks later I received a telephone call from one of the men who asked me to meet him.   He gave me some forms and told me to sign them and he took me to the Australian Embassy.   He told me to go in to lodge the forms, while he waited outside for me.

I was not aware that I had to pay an application fee when I went to lodge the Student visa application that day so when the officer asked me for the application fee I did not have enough money with me.   I took the forms back and went outside the Australian Embassy where man was waiting for me.   He told me to go home to get the application fee while he waited for me to return.   I went home to get the money and returned to the Australian Embassy, and I lodged the Student visa application and paid the fee.   The man told me that I should ask about my application in about a week’s time.

About a week or two after I had lodged the application, I went to the Australian Embassy.   They gave me a letter written in English, which I could not read.   I range the man who had taken me to the Embassy and he told me to ring the other man, whom I had met some weeks before.    I rang the other man and met him and showed him the letter.   He told me that the Embassy said there was a problem with my passport because the date of birth was not legible.   He said that he would fix the problem.

A few weeks later the man rang me and asked me to meet him.   He gave me some papers to sign and said that I had to lodge a new student application.  He then told me to go back to the Embassy to lodge the application and pay the fee again.

About a few weeks later the man rang me to say that my application was rejected.   He did not show me any letters but told me that the Embassy sent their agent to the pharmacist address and did not find me working there or living there.   I did not hear from the men or Nar again and I could not contact them either.   They had told me to wait and then they changed their telephone number.   They did not have an office.

While all this was happening and before my application was rejected the first time my husband’s father (who is also my uncle) Koc Seng Tang telephoned my mother to see how the family was doing.   I took the opportunity to tell him that I had met some people who could me help obtain a Student visa to Australia.   I told him that I would need to pay them US$8000.00 if my application was successful.  I asked him if he could ask the relatives if they could help out.   My uncle said that he should be able to come up with the money.

I did not tell my uncle that I had lodged the student application using a false name.   I did not think that it was important to tell him that because it was common practice in Cambodia.   I also did not realize the seriousness of my mistake in applying for migration under a false name.”

11.      For the purpose of processing the visa applicant’s current spouse application she was interviewed on two separate occasions at the Australian Embassy at Phnon Penh on 9 August 2002.    The first interview was at 9.50 am.   The second was at 10.45 am.   The progress and substance of each interview was recorded by the primary decision-maker in her Decision Record (Exhibit A pp4-13) at paragraphs 14 to 22 as follows:

“Prior to interview Ms Chhay was given an information sheet on the requirement to be of good character in both Khmer and English to read.   At commencement of the interview the good character requirement was explained in regard to the provisions of false and misleading information.  The applicant stated she understood this requirement and that the consequences for the provision of false and misleading information would be the refusal of her application.   The applicant signed the character sheet (folio 178).

Ms Chhay misled the officer at interview when she failed to declare her previous false identity of SOK Leang when given the opportunity to do so.

When questioned further and shown her photographs from the previous s/c 560 student visa applications, Ms Chhay then freely admitted to lodging the student visa applications under a false identity.   She claimed she did so in an attempt to distance herself from her previous unsuccessful applications under her true identity of CHHAY Ly Huang (02/11/1974).

Ms Chhay claimed she had been trying to migrate to Australia since 1981 and after repeated refusals had been willing to change her identity.   She claimed an agent told her he could organise a student visa and given her previously unsuccessful migration history, the applicant was willing to apply under a false identity.

Despite the circumstances and timing of her marriage to her cousin, Ms Chhay denied she falsely declared her purpose of visit in the s/c 679 Sponsored visitor application or before the MRT.

When questioned regarding the “missing” status of her mother, Ms Chhay admitted that her mother had been living with her since 1995 and was not in fact missing but was unable to otherwise explain the contradictions.

The applicant attended a further interview on 9 August 2002 at 10.45 hours where she was notified of the intention to refuse her visa application under section 501 character provisions.

At interview Ms Chhay freely admitted that a large majority of her relatives were in Australia and she wanted to join them.   She freely admitted that she had been trying to do so since 1981 when in the camps in Vietnam.

Ms Chhay demonstrated remorse for her previous s/c 560 Student visa applications but claimed she tried to distance herself from the previous refusals.    She freely admitted that the sponsor and his family were aware of and supported the fraudulent applications financially.”

I find this summary of the relevant progress and content of the interviews and the admissions and denials recorded to be both fair and accurate.

12.     During the course of her oral evidence the visa applicant adhered substantially to what she had said in her two written statements.   Neither she nor the review applicant were questioned about any knowledge which he or his family may had had of her two fraudulent Sok Leang visa applications or any financial support which they may have provided for those applications.   In Exhibit “B” the review applicant has denied any knowledge of the visa applicant’s previous visa applications until after the rejection of her present application.

13.     On the whole of the evidence bearing upon the issues identified and contentions advanced in paragraphs 8 and 9 of these reasons,  I am at this stage of the review able to make the following findings.

As to paragraph 8(a) (Sok Leang Student visa applications) proved beyond reasonable doubt.

As to paragraph 8(b) (Family knowledge and support) not proved.

As to paragraph 8(c) proved on the balance of probabilities.

As to paragraph 9(a) see discussion and findings hereafter.

As to paragraph 9(b)(i) and (ii).  (i) Proved on balance of probabilities.  (ii) Proved on the balance of probabilities.

14.     The question whether or not the marriage of the applicants is a sham or genuine is of considerable importance to the outcome of this review, but is not, of itself necessarily conclusive.   Much of the oral evidence of both applicants, particularly their cross-examination, was directed to this issue.   The photographic evidence was also highly relevant and to a certain extent, perplexing.   I now turn to an examination of this evidence.

15.     Both applicants said in their statements and repeated in their oral evidence that prior to the visa applicant’s arrival in Australia in February 2002, they had developed an affectionate relationship by conversing on numerous occasions by telephone.   These conversations had started around January 2001 when the review applicant’s father telephoned the visa applicant’s family in Cambodia to wish them a happy Chinese New Year.   The applicants had never met previously and had never even spoken to each other before this.   However on this occasion they spoke to each other for about 10 minutes.

16.     Later in April 2001, the review applicant telephoned the visa applicant again.  They spoke, it is said, in the Teo Chew Chinese dialect.  There is no evidence that they corresponded by mail.   The review applicant says (Exhibit A p.79 para. 29) “Most of my communication with my wife was via telephone as I can only read and write English (although I can also speak the Teo Chew dialect) whilst my wife is able to write in Khmer and Chinese only”.   The review applicant says that at first he would phone the visa applicant fortnightly, but later this became a weekly occurrence and then “every couple of days”.

17.     Both applicants deny that there was any plan or promise of marriage before the visa applicant arrived in Australia.   They said that the purpose of the visit was so that the visa applicant and her brother (who accompanied her) could see their grandmother who lives in Sydney.   The respondent challenges these assertions and asks me to infer that at least a predominant part of the purpose was to enable the applicants to marry.

18.     The applicants say that following their meeting at Sydney airport in February 2002, their love for each other developed and, on 2 March, during a visit they made to the Sydney Harbour area (accompanied by the visa applicant’s brother) the review applicant proposed marriage to the visa applicant and she accepted.

19.     They were both questioned in detail about the events of 2 March and the sequence in which they occurred.   Both applicants professed a clear recollection of these events, but close questioning exposed a number of inconsistencies, not only between each other, but, in the case of the review applicant, between his account contained in his statutory declaration of 14 May 2002 (see pp78-82 of Exhibit A) and his account given in evidence at the Tribunal hearing.   In the statutory declaration he said that he proposed (and she accepted) at Darling Harbour.   In his oral evidence he said the proposal and acceptance took place at Mrs Macquarie’s Chair.   In her evidence the visa applicant said the proposal and acceptance took place at the Opera House.

20.     There were also numerous discrepancies between the applicants as to the sequence of their movements that day, how and when they moved from one location to another, the approximate times at which various events occurred and whether or not they had anything to eat or drink while visiting the harbour area.

21.     It was common ground between them that they did visit Darling Harbour, Mrs Macquarie’s Chair and the Opera House on the day in question, but beyond this there seemed to be considerable confusion.   In the case of the visa applicant who was a newcomer to Sydney this is perhaps understandable, but her lack of familiarity with the Sydney landscape does not appear to be a complete or satisfactory explanation for the differences in the evidence.

22.     Both applicants agreed that during the course of the day they visited the Opera House where photographs of them, obviously delighting in each other’s company, were taken by the visa applicant’s brother.   However during an examination of the photocopies of the original prints it became apparent that they bore the date “20.3.02”.   When this was drawn to the review applicant’s attention he said that the date encoding mechanism of the camera which had been used was faulty.

23.     In testing this claim it was interesting to note that photographs which had apparently been taken by the same camera at the applicant’s wedding on 24 March 2002 bore the correct date viz “24.3.02”..   In light of the allegation of a sham marriage, this (rather evidence) excites speculation that the photos may have been part of a carefully contrived scheme to support a story of a romantic proposal and a genuine wedding. However I did notice on examining Exhibit G that the first few frames in the relevant negative strips bore the date “23.3.02”..  Having regard to the subject matter of those photos it would be difficult to conclude that they had been taken the day before the others, although I suppose it is possible that the earlier frames were taken before midnight on 23 March and the rest after during the early hours of 24 March.

24.     I also note that according to the Invoice at p118 of Exhibit A, 6 rolls of film were left by the applicants to be developed by “Canley Heights 12 Hour Photo” on 25 March 2003, but only 5 rolls of negatives were supplied to me with Exhibit H.  It may be that the sixth roll had nothing to do with the wedding, but in the circumstances this seems unlikely.

25.     It may be that the reader is wondering what is the significance of the dates of and the contents of these photographs.   I will attempt to explain.   To enable the marriage between the applicants to take place before the visa applicant returned to Cambodia on 29 March 2002, it was necessary for them to apply to shorten the prescribed time, which must elapse before the intended marriage could take place.  A copy of this application, made under s42(5) of the Marriage Act 1961, appears at page 114 of Exhibit “A”.   The copy application appears to be incomplete and it is undated.   However it recites that the notice of the applicants intended marriage “was filed with the authorized celebrant, on 5^th March 2002”.   This of course ties in with the date of the proposal alleged by the applicants to have taken place on 2 March 2002.

26.     But what if the photos taken at the Opera House were taken on the date actually recorded on the prints (and on the relevant negatives) i.e. 20 March 2002?  Would this not mean that the visit to the Opera House was contrived to give a semblance of truth to the claim that a romantic proposal had occurred on that day when in fact (as the application to shorten time confirms) marriage plans had actually been put in hand over a fortnight before?    If this should be the correct conclusion would this not also point to the strong probability that this was indeed a contrived marriage as the respondent contends?   Against the background of the visa applicant’s many attempts to enter Australia not just as a visitor, but to be reunited with members of her family already living here, this potential conclusion needs to be considered seriously.

27.     In addition, as I have already indicated, the evidence of the two applicants regarding the events of the day of the alleged engagement was far from compelling.   Then, of course, there is their evidence as to a courtship conducted entirely by telephone until 15 February 2002 followed by only a couple of weeks of personal association before the review applicant decided to propose.   None of these things are particularly remarkable on their own, but taken together they also excite  suspicion that this might be a contrived marriage.

28.     However after careful consideration of all the evidence, I am unable to make a positive finding to this effect.   As Deputy President Forgie recently observed, the motives and circumstances which cause parties to marry can vary substantially without affecting the legitimacy of the union.

29.     The true test of whether a marriage is contrived or genuine is to be judged by whether or not the parties have entered into a bona fide relationship of mutual commitment and support intended to continue forthwith and indefinitely into the future.   Romantic love is a usual, but not indispensable, part of such a relationship.   On her own evidence it is clear that the visa applicant was hopeful that marriage would occur with the review applicant, well before she came to Australia.   He too may well have had similar hopes and even expectations.   They were both probably encouraged in these hopes by near relatives.   Whilst it would not be difficult for the Opera House photos and the wedding photos to be contrived, there is insufficient evidence to justify such a conclusion.   The photos themselves tend to show a happy young couple and a genuine wedding party.    There is no compelling evidence to the contrary.  For present purposes, I am prepared to accept that the marriage is probably genuine.

30. It is therefore necessary to consider the findings which should be made as to the character issues which have been raised. Mr Poynder all but conceded that an adverse character assessment of the visa applicant was inevitable on the basis of her 2 false SOK LEANG applications. I am of course indebted to Mr Poynder for not wasting the Tribunal’s time unnecessarily on unwinnable issues. However it is incumbent on me to form my own conclusions based upon the requirements of the Act and the directions contained in the Minister’s Direction No 21 of 23 August 2001 in respect of Visa Refusal and Cancellation under section 501.

31.      As pointed out by the respondent in the Respondent’s Statement of Facts and Contentions paragraphs 9 and 10, Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 and Goldie and Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 contain useful observations as to the meaning of “good character” in relation to immigration issues. There is no need to repeat the relevant passages.

32.      The respondent also points out that the visa applicant’s dealings with the Department in relation to the Sok Leang applications and the other matters in respect of which I have made adverse findings in paragraph 13 hereof, constitute conduct of the kind referred to in paragraphs 1.9(b) and (c) of the Minister’s Direction.

33.      In my opinion the visa applicant’s lack of truth and candour in her dealings with the Department, and her deliberate disregard of Australian immigration laws for the purpose of deception, and her own perceived advantage clearly demonstrates that her enduring moral qualities are deficient.   It cannot be assumed or expected that in future dealings with governmental agencies in Australia she would be frank and truthful.   In my assessment the visa applicant does not pass the character test.

34.      To determine whether or not the application to review succeeds or fails, it is therefore necessary for me to consider whether my residual discretion should be exercised in the visa applicant’s favour.    The second part of the Minister’s Direction No 21 bears upon this issue and is binding upon all decision-makers including the AAT.   Regard must be had to 3 primary considerations and a number of other considerations.

35.     Only 2 of the 3 primary considerations are relevant to the present case.   They are :

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

(b)The expectations of the Australian community.

36.     In respect of the first of these considerations, the Ministerial Direction makes specific mention of 3 factors viz:

(a)the seriousness and nature of the conduct i.e. the conduct of the applicant taken into account in assessing his or her character;

(b)the likelihood of repetition of such conduct (risk of recidivism); and

(c)whether the visa refusal may prevent or discourage similar conduct (general deterrence).

37.     The Ministerial Direction makes it clear (paragraph 2.6(c)) that offences including (i) arranging a contrived marriage to obtain permanent residency (ii) presenting false or forged documents; or (iii) making a false or misleading statement in connexion with entry or stay in Australia, are considered by the Government to be very serious.

38.     Although I have not made an adverse finding against the visa applicant in respect of the allegations of her having engineered a contrived marriage, the adverse finding which I have made in respect of the two SOK LEANG student visa applications constitute “very serious” conduct within the Minister’s criteria.   The other false “missing mother” declaration in respect of the 1996 and 2001 visa applications, coupled with her false and misleading declarations in the current visa application also tend to show an ongoing inclination by the visa applicant to be far from frank with the Department on more recent occasions and lead me to the inference that there is a real risk of repetition of similar dishonest dealings with governmental and public instrumentalities in the future.

39.     The question of general deterrence is an issue with which I have dealt in many similar recent decisions.    The visa applicant refers to the “common practice for people to use false names to try to make successful applications for migration” in paragraph 50 of Exhibit “C”, by way of explaining and perhaps excusing her own conduct, but in my view there is a further dimension to this proposition.   In my opinion if such practices have been or still are widespread or commonplace, there is a clear necessity for the Tribunal to consistently approach such applications as the present, bearing in mind the words of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA 935, paragraph 40 where he said:

“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.”

40.     In my opinion there is a clear duty for the Tribunal to recognise that refusal of a visa to an applicant who has made a fraudulent application is likely to send an unmistakable deterrent message to other potential applicants that serious falsehoods may well beget failure.

41.     Turning now to the “expectations” of the Australian community it is appropriate to observe at the outset that the expectations in contemplation are those of fair-minded and moderate citizens with a reasonable grasp of relevant facts.   (cf Leha and Minister for Immigration and Multicultural Affairs (2000) AATA 1054 AT 2.12 per Deputy President McMahon).

42.     Counsel for the visa applicant urges me to take account of her sad family history in Cambodia and the suffering inflicted both directly and indirectly by the brutal and monstrous regime of Pol Pot.    I have re-read the evidence as to these matters.  I accept that evidence and take it into account.

43.     Before expressing an opinion as to the expectations of the Australian community, I think it appropriate to consider factors which may militate in the visa applicant’s favour.   It seems to me that all such factors as may arise in the present case are embraced by the “other considerations” to which the Minister’s Direction No 21 in paragraph 2.17 and following (see Exhibit “A” page 32 et seq).   Such issues as “disruption to family”, “genuine marriage with an Australian citizen” and “hardship caused to the visa applicant and/or her spouse” all arise in the present case.

44.     I have found that the marriage between the applicants is probably genuine.  Therefore it must be concluded that refusal of a visa to the visa applicant will cause hardship to them both by preventing her from joining her husband in Australia.   However they have stayed in touch since their separation and there are no children of their union.   The visa applicant has a good job in Cambodia and her brother and mother also live there.    Several other members of her extended family live in Australia.    The review applicant has said that if his wife’s visa is refused he “would consider” returning to Cambodia to live with her there.   I am in no doubt that if the marriage is genuine he will do so.   It does not seem that he will abandon any specific career path for his advancement in Australia if he does so.   It has not been claimed that there is, or is likely to be any impediment to his returning to and settling in Cambodia.

45.     There is no evidence of rehabilitation or recent good conduct by the visa applicant (See Direction paragraph 2.17(h)).    It is noted that the application for a spouse visa could lead to a permanent visa after residency in Australia for 2 years (See Direction paragraph 2.17 (i)).

46.     There are no International Obligations of the kind referred to in the Direction, paragraph 2.18 and following to be considered.   Mr Poynder in the applicant’s Statement of Facts and Contentions at paragraphs 60 and 61 suggests that “possible interference with the visa applicants spousal relationship” may be a violation of Article 17 of the International Covenant on Civil and Political Rights.   With all respects to Mr Poynder I consider his argument to be strained and untenable.   I reject the proposition that the Tribunal's determination could amount to an “arbitrary or unlawful” interference with the visa applicant’s family or marital relationship.   There is no need to go down the slippery path of considering the “legitimate expectation” issues raised in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

47.     In my opinion the expectation of the Australian community would be that the visa applicant should not be granted the visa which she seeks.    In my opinion the hardship issues which I have referred to and discussed do not outweigh the outcome suggested by an assessment of the primary considerations.   In my opinion this is not a case for exercise of discretion in favour of the visa applicant and, consequently, the decision under review is affirmed.

I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:         K L Miller (Administrative Assistant)

Date/s of Hearing  30 June 2003
Date of Decision  19 September 2003
Counsel for the Applicant         Mr N Poynder
Solicitor for the Applicant           Ms Janice Vu (Janice Vu Associates)
Counsel for the Respondent     Christos Mantziaris
Solicitor for the Respondent     Blake Dawson Waldron