Thorn and Department of Immigration and Multicultural Affairs - [2001] AATA 299

DECISION AND REASONS FOR DECISION [2001] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1127

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      MEY THORN
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President S P Estcourt Q.C.,

Date11 April 2001
PlaceBrisbane

Decision      The decision under review is set aside and the matter is remitted to the respondent for re-consideration with a direction that the visa application not be refused under s.501 of the Act.
  ..............................................
  Deputy President
CATCHWORDS
Migration – Spouse (Provisional) Visa – refusal – character – past general conduct – false and misleading statements and bogus documents furnished in connection with visa application – discretion to grant visa.
Migration Act 1958 – s.501

REASONS FOR DECISION

11 April 2001 Deputy President S P Estcourt Q.C.,

This is an application by Mey Thorn ("the applicant"), for the review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs pursuant to s.501 of the Migration Act 1958 ("the Act"), to refuse the grant of a sub-class 309 – Spouse (Provisional) visa to the applicant's husband, Sokkiry Phoung.
The delegate's decision, dated 18 October 2000, was made on the basis that the visa applicant was not of good character in relation to his past and present general conduct and thus did not pass the "character test", and the visa applicant had not persuaded the delegate to exercise his residual discretion under s.501(1) of the Act.
The relevant provisions of s.501 of the Act are:
"S.501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6)       For the purposes of this section, a person does not pass the character test if:
          …
          (c)       having regard to either or both of the following:
(i)        the person's past and present criminal conduct;
(ii)       the person's past and present general conduct;
  the person is not of good character."
Thus, it can be seen that the exercise of power under s.501 of the Act involves, first, a consideration of whether the visa applicant is of good character and second, whether a discretion not to refuse the visa applied for should nevertheless
be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In the exercise of its jurisdiction the Tribunal is bound to consider a number of factors specified by the Minister's Direction No. 17 made under s.499 of the Act which provides guidance to decision-makers in making decisions to refuse or cancel a visa under s.501 of the Act.
Paragraph 1.9 provides:
"1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
…
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
…".
There is no room for doubt in this case that sub-paragraphs (b) and (c) of paragraph 1.9 of Direction No. 17 are relevant as the visa applicant admitted to officials at the Australian Embassy in Phnom Penh that he both provided bogus documents and made false and misleading statements in connection with applications for the grant of visas and had made false and misleading declarations on approved forms as to his character and conduct.
Counsel for the applicant conceded that the matters set out in the applicant's statement of facts were accurate.   These matters were as follows:
"9/   On 29 July 1996, the Australian Embassy in Phnom Penh received from the Visa Applicant, an application to visit Australia for tourism or other recreational activities (Form 48R).   That application contained false or misleading claims in the following respects:
(a)       The Visa Applicant stated that he was widowed (Question 8);
(b)       The Visa Applicant stated his date of birth was 1 October 1971 (Question 9);
(c)In answer to a question "Why do you want to visit Australia?" the Visa Applicant answered:
"I want to visit Australia for a holiday and visiting my brother and my sister and all of their's (sic) family and there (sic) were Australian citizen (sic)."
(Question 16)
This application was refused by letter dated 19 July 1996.
(d)The Visa Applicant stated that he had a child named Sokkiry Techno ("Techno"), (attachment to the form);
10.On 16 July 1997 the applicant applied for a sub-class 309 spouse visa.   In that application the Visa Applicant:
(a)Claimed Techno was his son;
(b)Claimed his date of birth as 1 October 1971;
(c)Provided a Cambodian ID card and a family card; and
(d)Provided details of his former wife, including her name, date of birth, date relationship started, date relationship ended and that the relationship provided one child.
11.In support of that application, the Visa Applicant provided the following false documents:
(a)Bogus birth certificate;
(b)Bogus death certificate (of alleged former wife);
(c)Bogus family book;
(d)Bogus family card;
(e)Bogus identity card;
(f)Bogus letter from Ministry of Foreigner Affairs;
(g)Bogus Passport; and
(h)Bogus school attestation.
12.On 7 June 2000, the Visa Applicant was interviewed by the Principal Migration officer at the Australia Commission Phnom Penh.   At that interview:
(a)It was explained to the Visa Applicant that it is an offence to provide false and misleading information or to present a forged document to an Australian Government Official;
(b)The consequences of providing false information were explained to the Visa Applicant;
(c)The Visa Applicant provided a false date of birth;
(d)The Visa Applicant falsely asserted he was a widower;
(e)The Visa Applicant falsely asserted he was the father of Techno;
(f)It was put to the Visa Applicant that the information he had provided regarding Techno and his previous marriage was untrue and the Visa Applicant maintained his story;
(g)The Visa Applicant admitted to providing a false date of birth, and admitted that his date of birth was 1968; and
(h)The Visa Applicant asserted that he altered his date of birth to allow his parents to get extra allowance from the government.
13.On 7 June 2000 the Principal Migration Officer at the Australian Embassy at Phnom Penh, wrote to the Visa Applicant to advise that the information presently held by the Officer, was not conclusive regarding the Visa Applicant's alleged son.   The Visa Applicant was offered DNA testing to conclusively prove that Techno was his son.
14.On 30 June 2000, the Visa Applicant's representative wrote to the Australian Embassy providing a "confession" of the Visa Applicant, admitting that Techno was not his child, but in fact the Visa Applicant's nephew.
15.The Visa Applicant was again interviewed at the Australian Embassy in Phnom Penh on 17 October 2000.   At that interview the Visa Applicant:
(a)Admitted that the previous date of birth he provided was false and that his true date of birth was 30 January 1968;
(b)Admitted that Techno was not his child and he had falsely included Techno in his application for migration;
(c)Admitted that the details of his former wife were "made up";
(d)Admitted that the documents he had provided were false;
(e)Admitted that his sister and her husband and the Applicant assisted him in preparing false documents and in completing his applications;
(f)Admitted that the main purpose for applying for a visitor visa was so that he could marry in Australia and seek work;
(g)Admitted that the Applicant was aware of the proposed deception by including Techno as his son and arranged for completion of the application; and
(h)Admitted that the Applicant was aware of other details in the application that were false, such as details of the Visa Applicant's former wife."
That such conduct would in the absence any countervailing factors be of sufficient seriousness as to cause the visa applicant to fail the character test is clear.
It is an offence under s.234 of the Act, for a person, in connection with an application for a visa to provide forged or false documents, to make a false and misleading statement, or to furnish a document containing a false or misleading statement or particular information. The penalty provided is imprisonment for 10 years or 1,000 penalty units, or both.
Paragraph 1.11 of Direction No. 17 requires the Tribunal to consider any recent good conduct when considering the visa applicant's general conduct. Paragraph 1.11 provides:
"1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion. (See Part 2)."
"Recent good conduct" has been held to mean recent good conduct in an immigration sense. (Re Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74 at para. 40).
If that be the correct interpretation of sub-paragraph 1.11 the only evidence of recent good conduct is the written confession dated 30 June 2000 and perhaps the admissions made upon interview of the visa applicant at the Australian Embassy on 17 October 2000.
Neither of those matters, however, carry any significant weight in view of the fact that they only came after the visa applicant had been confronted with exposure by way of the offer of DNA testing.
If, as was thought possible by Deputy President Block in Tuiono v Department of Immigration and Multicultural Affairs [2001] AATA 92 at para. 9(b), the concept of recent good conduct is wider than conduct in an immigration sense, it would be necessary to look at the unchallenged evidence of Hem Channath, 1st Deputy Chief of quarter Chey Chum Nas, District Daun Penh, Phnom Penh City, that the visa applicant has a good character.
I do not see however how such a bold assertion can be relevant "recent good conduct" irrespective of the true width of that concept and at best if could not carry sufficient weight to overcome the seriousness of the visa applicant's conduct.
There are no other countervailing factors and it follows that the visa applicant does not satisfy the character test.
Turning to a consideration of the residual discretion under s.501 of the Act brings the Tribunal to a consideration of the matters set out in Part 2 of Direction No. 17.
The three primary considerations to which the Tribunal must have regard are:-
(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 relationship between a child or children, and the person under consideration, the best interest of the child or children.
The factors relevant to an assessment of the level of risk to the Australian community 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 the visa refusal may prevent or discourage similar conduct (general) deterrence.
The respondent concedes in its statement of facts and contentions that if the visa application were granted, the visa applicant would be unlikely to have an opportunity to repeat his conduct. I am more than satisfied however that the conduct amounts to a serious crime against the Act and as such is considered by the Australian Government to be very serious (paragraph 2.6(c) of Direction No. 17), and I am more than satisfied that the refusal of the visa application in this case would act as a significant general deterrent.
Similarly, I am more that satisfied that the expectations of the Australian community are that people who make false claims in visa applications and support those false claims with bogus documents should not be rewarded by the grant of a visa.
There is no parental relationship between a child or children and the visa applicant in this case.
Where relevant, other considerations than the primary considerations set out above may be taken into account in the exercise of the discretion, but those matters are to be given less individual weight than the primary considerations.   These other considerations are set out in paragraph 2.17 of Direction No. 17 and include:
"(a)     the extent of disruption to the non-citizen's family, business and other ties to the Australian community:
(b)       genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen: in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
(c)       the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)       family composition of the non-citizen's family, both in Australia and overseas."
In this case, the unchallenged evidence of the applicant is that she is 28 years of age, she is employed as a propogation nursery person and is buying her own house at Rochedale South in which she lives with her ageing parents who are at least partially dependent upon her for housing.
Ms Mey came to Australia in May 1995 with her parents. They had fled Thailand from Cambodia in 1979, when Ms Mey was 6 years old, after the invasion of Cambodia by Vietnam and warfare between Vietnamese forces and the Khmer Rouge. They lived in a refugee camp in Thailand until they were accepted for entry into New Zealand in 1988.
Ms Mey and her parents are Australian citizens.
On 6 March 1995 Ms Mey married Sokkiry Phoung in Cambodia.   She gave the following evidence about her marriage:
"A. Genuineness of Marriage
I was first introduced and became aware of my husband Sokkiry Phoung after a friend of my parents, Mr Chanteary Ross, approached my father with a view to introducing Sokkiry Phoung and arranging a marriage between us.
I have been informed by my father and verily believe that subsequently they entered into negotiations with Tor Pheoung with a view to make the marriage arrangements with me and Sokkiry.
I only spoke to Sokkiry on one occasion prior to our travel to Cambodia; however, I none the less proceeded with the marriage on the basis of our Cambodian custom and tradition to accept the parents arrangements for marriage.
We have a very strong cultural tradition and custom in our family and I therefore accepted my parents decision to enter into a marriage which was arranged for me between my parents and the parents of my husband, Sokkiry Phoung.
It was in the beginning of March 1997 that I travelled Phnom Penh to meet my husband and undergo the marriage to Sokkiry Phoung.
Although I had some redescents and hesitation, which I first met Sokkiry Phoung at the airport I can say that it was love at first sight and there was attraction and feelings between us.
In the days that ensued, particularly the marriage ceremony Sokkiry and developed a very close friendship with each other and affection.
I fell in love with my husband and I know that he has reciprocal feelings for me.
I was very excited at the prospect of the marriage and the marriage ceremony which was to follow.   I was excited and happy during the course of the marriage and looked forward to a long life with my husband, Sokkiry.
The marriage was undertaken under the laws of Cambodia and we have a mutual commitment to a shared life as husband and wife towards the exclusion of all others.
The relationship between us is genuine and continuing even though we live separately and apart whilst not on a permanent basis, hopefully.
It was then that we decided that Sokkiry would apply for a spouse visa to travel to Australia and I would sponsor him in that regard.
I have a genuine belief that we are in a married relationship having regard to the following factors as prescribed under Regulation s.15A paragraph 3 of the Migration Regulations as follows:-
(a)       The financial aspects between us:
Whilst the financial relationship between us at this stage is non-existent due to the fact that we have been separated, I do none the less support my husband by sending him amounts of between $200.00 -$500.00 during the course of the year during our separation.
As I have purchased a property at Underwood Road, Rochedale south, however, in my name, I consider that home to be our matrimonial home to be used by my husband and I when he arrives in Australia.
When he arrives in Australia until such time as he can find a job I am happy to support him and otherwise I feel confident that we will share the household expenses and financial commitments once he obtains a job.
(b)During the course of time that I was together with Sokkiry in Phnom Penh, as husband and wife we shared the responsibility of housework.   We have also consummated our marriage and when together were permitted by my parents to share one room.
(c)We have not been able to of course, since my return to Australia satisfy the requirements set out in respect of the social aspects of the relationship.
However, whilst in Cambodia, Sokkiry visited friends together, went out together, went sightseeing together and invited friends and shared those situations together.
During the time that we were together we always were together undertaking joint social activities and similarly should my husband be permitted to travel to Australia we certainly intend to continue same.
(d)In considering the nature of out commitment to each other, I would say that notwithstanding the duration of our relationship prior to the marriage, the length of time since our marriage and the commitment we have to each other has shown that our marriage is genuine.
I have only lived with my husband for a very short period and because of this shortness of period I miss him intensely.
I obtain a substantial degree of companionship and emotional support for him and try to phone as many times as possible in the course of a month bearing in mind my income and the expensive costs of telephone calls. I believe that the relationship between us is a long term one and I feel that Sokkiry has similar feelings and emotions towards me.
(e)Because of the great length of time that I have not been able to be with my husband I suffer depression and am distressed at the fact that I cannot be with him and I miss him very much.
(f)I am unable to travel to Phnom Penh to visit him because of the fact that I have had to pay for legal expenses in respect of my husband's application as well as other expenses relating to my living costs and in the recent purchase of a home for us.
(g)On the basis of these factors therefore, I feel that I have established compelling and compassionate circumstances for the granting of a visa as the marriage between us is genuine and long lasting."

Whilst counsel for the respondent submitted that it was a matter of concern that Ms Mey had made earlier statements which did not mention the involvement of Mr. Chanteary Ros in the arrangement of her marriage and also a matter of concern that the visa applicant did not give evidence of having received all of the monies Ms Mey stated she had sent to Mr. Phoung senior, and whilst the degree of contact between Ms Mey and Mr Phoung was explored, there was no serious challenge to Ms Mey's evidence and that of other witnesses that her marriage was and is a genuine and loving one. The Tribunal accepts that evidence.
That evidence included, that the marriage was celebrated in accordance with Buddhist rites, Ms Mey and Mr Phoung both following the teachings of Buddha. Chief Buddhist Monk Pich Poun gave evidence about the celebration and obligations of Buddhist marriage.
When asked by the Tribunal if Ms Mey was free to remarry if her husband's visa was refused and they were prevented from being together, he said that Buddhist marriages were for life, that she would not be free to remarry and that such a situation was often known to lead to suicide. The Tribunal accepts that unchallenged evidence.
Finally, as to relevant facts I note that counsel for the respondent accepted during his closing address that Ms Mey could not be said to have known that her husband was "of character concern" at the time of entering into the marriage.
Whilst giving less individual weight to each of the following considerations falling with paragraph 2.17 (b) and (c) of Direction No. 17, than to the primary considerations set out in paragraph 2.3, I am of the view that the total weight of these matters require, in this case the exercise of the residual discretion in favour of the visa applicant.

(a)the applicant is an Australian citizen who is in a genuine and loving marriage, with the visa applicant.
(b)marriage according Buddhist teachings is for life, does not permit the applicant to remarry and forced separation is known to result in suicide.
(c)the applicant suffers depression because of the length of time she has not been able to be with her husband.
(d)the choices confronting the applicant if the visa application is refused are to return to Cambodia where he has never lived, other than as a 6 year old child and after living in New Zealand and Australia since she was 15 and to leave behind her elderly parents who depend upon her or being unable to afford regular travel to Cambodia, or to permanently apart from her husband.
Either choice I find would cause great hardship to the applicant and the first choice great hardship to her parents.

The decision under review is therefore set aside and the matter is remitted to the respondent for re-consideration with a direction that the visa application not be refused under s.501 of the Act.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S P Estcourt Q.C.,
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing   15 and 16 March 2001
Date of Decision   11 April 2001
Counsel for the Applicant         Mr J A Logan, S.C
Solicitor for the Applicant          Rouyanian & Company
Counsel for the Respondent    Mr Phillip O'Higgins
Solicitor for the Respondent    Blake Dawson Waldron