Yap and Minister for Immigration and Multicultural Affairs

[2006] AATA 510

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 510

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2005/497

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HARDY YAP

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date13 June 2006

PlaceMelbourne

Decision

The decision under review should be set aside and in substitution IT IS DECIDED –

1.        Ms Chai‑inpan does pass the character test; and

2. The application is remitted to the decision-maker for reconsideration with a Direction that the visa sought not be refused pursuant to s 501 of the Migration Act 1958.

..............................................

Senior Member

IMMIGRATION – visa refusal – visa applicant made false statements before entry and whilst in Australia – character test – past and present general conduct examined – greater weight attaches present general conduct – decision under review set aside

Migration Act 1958 (Cth) s 499 and s 501 (6) (c)

Direction No 21

Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774

Re Adikarta and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1071

Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022

Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935

Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065

Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96

REASONS FOR DECISION

13 June 2006   Mr John Handley, Senior Member

1.      Mr Yap is a resident and citizen of Australia who applied to the respondent to sponsor his fiancée (partner) to migrate to Australia.  Mr Yap is the applicant in these proceedings.

2.      Ms Rattanaphon Chai-inpan is the fiancée of Mr Yap who is a resident and citizen of Thailand.  On 21 April 2004 she lodged an application with the Australian Embassy in Bangkok to migrate to Australia as the partner of Mr Yap.

3. The application by Ms Chai-inpan was refused under s 501 (1) of the Migration Act 1958 (“the Act”).  The respondent’s delegate decided that Ms Chai-inpan failed the character test under sub-section  (6) namely that by reason of her alleged past and present general conduct she was not of good character.

4.      Mr Yap, as the Australian sponsor, applies to review the decision to refuse the granting of a visa to Ms Chai-inpan.

5.      The hearing commenced on 5 April 2006 but was adjourned part-heard at the conclusion of the evidence of Mr Yap.  He speaks the Mandarin language and an interpreter was accordingly arranged and assisted him in the giving of his evidence.  It was intended to hear evidence from Ms Chai-inpan in Thailand by telephone however, it was learnt at the hearing that she speaks the Thai language.  An interpreter had not been arranged for the hearing and it was not possible to obtain a suitably qualified interpreter on the day of the hearing.

mr yap

6.      Mr Yap adopted as his evidence-in-chief a statement completed by him on 20 December 2005.  That statement is reproduced as follows (with the exception of personal details):

1.I am an Applicant to review proceedings currently before the Administrative Appeals Tribunal (File No. V2005/497).

2.I was born on 22 May 1970 in Jakarta, Indonesia.  I am an Australian citizen, having been granted citizenship on 5 August 1998.  I currently hold an Australian passport (passport number [blank]).

3.I have previously been known by the name of Hardi Sugiharto.

4.I am currently employed as an operator at the Ford Motor Company factory located at [blank] Victoria.  I have been working there since [blank].

5.My fiancée is Ms Rattanaphon Chai-inpan.  She was born on [blank] in Thailand.

6.I proposed to my fiancée during May/April 2003 whilst visiting Thailand.  Rattanaphon lodged a subclass 300 (Prospective Marriage) visa application sponsored by me, as her fiancée, at Australian Embassy, Bangkok, Thailand on 21 April 2004.

7.I first met Rattanaphon on 17 October 2002 whilst she was working at a massage parlour located in Fitzroy, Melbourne.  I was a regular client of Rattanaphon; we saw each other regularly, at least twice a week.  Over time Rattanaphon and I got to know each other quite well.  One day I asked her for her phone number and she gave it to me.  I liked her and wanted to get to know her better.

8.We spoke on the phone, often.  She told me about herself and why she was in Australia.  She said she was from Thailand and had come to Australia to earn money to look after her grandmother who was sick.  I would tell her I was concerned for her welfare considering the work she was doing and was worried for her.  I worried that she was being exploited by her employers.  At the time, she did not have any other support in Australia other than me.

9.My fiancée told me later that when we first me she had been concerned that I may have been directed by her employer to “spy” on her and make sure she wasn’t doing anything wrong.  I had known one of Rattanaphon’s employers in the past, his name was Jim.  I had known him for about 6 months before I met Rattanaphon.  At the time, Rattanaphon told me her employer would not let her go out on her own.  When she was not working at the massage parlour, she went home.  Rattanaphon was scared she might have been found to have “done something wrong”.  I have not seen Jim for the last 2 years.

10.During November 2002, I travelled to Singapore to visit friends.  Whilst I was overseas, Rattanaphon rang me to tell me she had left Australia and returned to Thailand to be with her family.  In a way, I was pleased.  I restated my feelings for her.  She said I was “a good man” and that she wanted me to visit her and her family in Thailand.  I felt we had a real connection.  I wanted to see her again to see where our relationship would lead.

11.I returned to Australia during January 2003.  Immediately, I began making arrangements to travel to Thailand.  We spoke constantly.  We talked a lot about what plans we had for the future.  Since December 2002, our relationship became closer.  I thought we had a real future together.

12.On 11 April 2003, I travelled to Thailand.  After meeting Rattanaphon, we booked a hotel room in Bangkok and spent all our time together sightseeing and going out.  It was another opportunity to really get to know each other.

13.After about two weeks in Bangkok, we travelled to Rattanaphon’s home village at Maesai, Chiang Rae.  There, I met Rattanaphon’s family, including her parents.  I got on well with her mother and father.  Rattanaphon lives with her grandmother; that is where I stayed.  I felt closer to Rattanaphon then [sic] I had ever felt before.  We went to many beautiful places together.

14.Whilst we were staying in Maesai, Chiang Rai, I proposed to Rattanaphon.  To my joy, she accepted.  We told Rattanaphon’s parents and they were both very happy.  We decided we would have the engagement party in Thailand and get married in Australia.  It was all very exciting.  During May 2003, I had to return to Australia.

15.I started sending money to Rattanaphon.  She was working at a local community radio station and found it difficult to support herself (and her grandmother) on the wage she was receiving.  Her grandmother required expensive medical assistance.  My financial contributions helped Rattanaphon immensely.  I sent money about every second month.  On average, I would send approximately AUD$1,000 ‑ $2,000.00.  This money was sent by money transfer.

16.We were in constant contact, by telephone.  We spoke about three to four times a week.  We made plans for our engagement ceremony and wedding and our future lives together.  We planned to conduct the engagement ceremony during January 2004.

17.On 21 December 2003, I travelled to Singapore, staying for a few days to visit friends.  On 24 December 2003, Rattanaphon met me in Singapore and we travelled to Jakarta, Indonesia.  Rattanaphon met my family, including my parents.  Rattanaphon and my parents got on well.  She thought they were nice.  My parents gave their blessing to our plans for marriage.  My parents were unable to attend the engagement ceremony as my father was very ill at the time.

18.On 6 January 2004, we re-entered Thailand; returning to Maseai, Chiang Rai.

19.Our engagement ceremony was held on 10 January 2004 at Rattanaphon’s house.  It was a Buddhist engagement ceremony.  Her father was a Buddhist monk and performed the ceremony.  It meant a lot to Rattanaphon.  Many members of her family and friends attended the ceremony; about one hundred people in all.

20.I returned to Australia on 18 January 2004.

21.When returning to Australia, I saw a migration agent to get advice about Rattanaphon migrating to Australia from Thailand.  He said she could apply for a visa sponsored by me as her fiancée.  Our migration agent helped us complete all relevant forms and collate all relevant material.

22.To prepare her application, the migration agent spoke to Rattanaphon on a number of occasions to get relevant information.  Rattanaphon told the migration agent that she had previously applied for a protection visa during her last visit to Australia.  She told the migration agent this protection visa application had been prepared by her employer in Australia.

23.Rattanaphon had told me she had come to Australia on a visitor visa.  Rattanaphon thought, and had been told, the protection visa application prepared by her employer and lodged on her behalf was to enable her to get work rights.  She honestly thought she did not do anything wrong as she had been told by Mr Tik and Aa and her employers in Sydney (and later on Melbourne) that she needed to make this application in order to continue having lawful status in Australia.  She trusted those advising her in Australia and in Thailand to do the right thing.

24.During April 2004, I travelled back to Thailand.  With me, I took the completed application forms and relevant documents for Rattanaphon’s visa application.  On 21 April 2004, we went to the Australian Embassy in Bangkok, Thailand and lodged Rattanaphon’s application.

25.I understand that the Department of Immigration has made a number of allegations against Rattanaphon and said that she is of bad character and that they have refused her application on this basis.

26.I do not believe that Rattanaphon is of bad character.  I love Rattanaphon very much and we both want to be together.  I cannot wait until we can get married and feel we have a real future.  I understand the Department of Immigration recognises that my relationship with Rattanaphon is genuine.

27.If Rattanaphon’s application is refused, I will experience extreme hardship.  It will continue the separation that her and I have already had to endure since this situation arose.  Rattanaphon has been unable to travel to Australia because of her financial position.  I have travelled to Thailand to see her in the past but only for short periods of time.  I have an Australian passport and can only get visitor visas to come to Thailand.  I cannot afford to travel to Thailand too regularly as I do not have that much savings.

28. think it is too much to say that I should relocate to Thailand.  My life is in Australia and both Rattanaphon and I feel we have more of a future in Australia.  I have a long-term job (I having been working at [blank] for fifteen years), live in a property owned by my father, strong family ties in Melbourne (my three brothers and sister live in Melbourne) and have an established life in this country.  If I were forced to relocate to Thailand, I would not be able to find employment as I do not have any Thai language skills and would know no one except for my fiancée and her family.  I have no family in Thailand; my parents live in Indonesia.  I would need to rebuild my life afresh.

7.      In cross-examination, Mr Yap said that Mr Ngo Tung Bao, a migration agent in Abbotsford in Melbourne, had assisted in the preparation of the visa applications.  It was his understanding that Mr Bao had spoken to Ms Chai-inpan and obtained details from her in completing her application.  Mr Yap said that he understood that Ms Chai-inpan had notified Mr Bao that her former employers in Australia had prepared a protection application when she resided here in 2002 and she had signed that application. 

8.      Mr Yap confirmed that he first met Ms Chai-inpan in October 2002 when he was a customer of a massage parlour where she was employed in Melbourne.  He said that Ms Chai-inpan had been concerned that she was being exploited by her former employers.  He agreed that he did not suggest to her that she contact the police or government officials about her concern of being exploited.

9.      Mr Yap said that he and Ms Chai-inpan became “good friends” but he did not know whether she had permission to work in Australia or whether she had applied for permission to work in Australia.  Eventually, Ms Chai-inpan returned to Thailand at the end of 2002 and their friendship continued.  He proposed marriage to her at the end of 2003 and had discussions about obtaining a visa for her to return to live in Australia where they could be married.  Mr Yap has travelled to Thailand on two or three occasions to visit her and her family and to accompany her to visit his family in Indonesia.

10.     Mr Yap said that in the event that Ms Chai-inpan’s application is refused, he was confident that he and she could live either in Thailand or Indonesia.  He said that he had no trouble entering Thailand or Indonesia and she had no trouble entering Indonesia.

11.     In re-examination, and by way of clarification of entry rights into both Thailand and Indonesia, Mr Yap confirmed that he had travelled to Thailand on a holiday visa and said that he was “sure” that he could remain in Thailand initially as the fiancée and later as the spouse of Ms Chai-inpan.  He said he would open a business and be self-employed.  He did acknowledge however that he “hadn’t thought much about this”.  He said that he had lived in Australia for 16 years, had become an Australian citizen and throughout his time in Australia he had been an employee of the Ford Motor Company.  He has family members who live in Australia.  By way of indicating his commitment to Ms Chai-inpan, Mr Yap said that he would travel to Thailand in order to marry her.  He said that he and Ms Chai-inpan were in love.  If her visa application is refused, he would “have no choice” but to leave Australia and live with her in Thailand.  Alternatively, by reason of his dual citizenship with Indonesia, she could live with him in that country as his spouse.

12.     When the hearing resumed on 22 May 2006, Ms Chai-inpan gave evidence by telephone with the assistance of a Thai interpreter.  She adopted a statement completed by her on 20 December 2005 as her evidence-in-chief.  That statement is reproduced as follows (with the exception of personal details):

1.I was born on [blank] in Chiangrai, Thailand.  I am a Thai citizen.  I hold a Thai passport.

2.I have previously been known by the names, Rattanapron Jananuruk and Patcharee Chai-inpan.

3.My parents divorced when I was one year old.  My family was very poor.  We never had much money to live with as I was growing up.  My father became a monk and moved to another village.  My mother remarried and I went to live with my grandma in Chiang Rai.  I went to primary school in Chiang Rai.  My grand mother was very poor and we lived very frugally. Our position became worse as I grew older and my grand mother became quite ill.

4.When I was fifteen years old, I had no choice but to go to Bangkok to find work. My family did not have enough money to support me; my grandma barely had enough to feed herself.  I did not want to be a burden.

5.I worked as a servant for a time but did not make enough money.  I worked at night at karaoke bars in Bangkok.  I sometimes had sex for money with customers who came to the bars.  I would receive a commission of the drinks sold by the bar owner during the night.  I would send some of the money I earned to my grandma. I did not want to do these things but I had no choice as I had to survive and my grandma also needed money to survive.

6.I was previously married to Mr Chusitthi Junanuruk (on 27 October 1998).  We were divorced on 23 January 2001.  My ex-husband was about thirty-one years old when we married.  I was only twenty at the time. 

7.I am currently employed as a radio reporter with FM-106.75MHz Community Radio station Maesai, Chiang Rai.

8.I have limited English language skills.

9.My fiancée is Mr Hardy Yap.  He was born on [blank].  Hardy is the Applicant in these proceedings.

10.I knew a friend living in Bangkok, Thailand who introduced me to a Thai national who I only know as Mr ‘Tik’ and Tik’s girlfriend ‘Aa’.  Mr Tik had offices in Bangkok; they might have been in either the suburb Ramkhamheng or Hua Mak.  Mr Tik managed a travel agency.  I was told by my friend that Tik was an agent who could help people to apply for visas to enter Hong Kong, Singapore and Australia and work in the sex industry.  My friend said Mr Tik could help me get a visa to work in Australia.  My friend had previously applied for a visa to travel to Australia but her application had been refused.

11.I went and saw Mr Tik on or about December 2001/January 2002.  I told him that I wanted to get a visa to work in Australia.  He said I did not have to pay him any money to arrange the visa and travel to Australia but that money would be taken from my pay cheque(s) by my employer in Australia and paid back to him.  Mr Tik paid for my visa application and travel to Australia.

12.Mr Tik and Aa told me what to include in my visa application.  Aa arranged for a Singaporean man to be included on my visa application as my boyfriend.  I was told by Mr Tik that if it was said on my application that I had a Singaporean boyfriend it would assist grant of my visa.  About two to three weeks before lodging my application, I travelled to Singapore for a holiday.  I was told by SMOC Paul Finch during the interview conducted at Australian Embassy, Bangkok on 15 June 2004 in relation to my spouse visa application this man’s name was Stewart Tan.  We spoke together on a number of occasions to prepare for any questions we may be asked about my application.  I first met the Singaporean man in Bangkok after I had known Mr Tik and Aa for a short time.  We talked about our interests and personal details and took photos to give with the visa application.

13.My visa application was lodged with Australian Embassy, Bangkok on or about January 2002.  When I went to the Australian Embassy to lodge my application, I was accompanied by the man I now know as Stewart Tan and Aa.  When I lodged the visa application, I was unemployed.

14.I was granted a visitor visa soon after lodgement of my visa application.

15.On or about 5 February 2002 I travelled to Australia from Thailand on a visitor visa.  I was escorted by a Thai man who was about 30 years of age.  I was told by SMOC Paul Finch during the interview conducted at Australian Embassy, Bangkok on 15 June 2004 in relation to my spouse visa application this man’s name was Sitthisak Khampan.  I understood the man I now know as Sitthisak Khampan worked for Mr Tik.  We travelled with another woman.  I met the other girl the night before we travelled to Australia.  The girl was also travelling to Australia to work, as I was.  The man I now know as Stewart Tan did not travel with us.

16.I cannot remember whether I completed the passenger card when entering Australia on or about 5 February 2002.  The man accompanying me may have instructed me on what I needed to say on the card.

17.We landed at Sydney airport, Sydney.  I remember when going through Customs, the Customs officer took my passport to be checked but brought it back and I was allowed through.

18.From Sydney airport, the man I now know as Sitthisak Khampan took me and the other Thai girl to a hotel in Sydney.  I do not remember where this hotel was located.  I remember it was a hotel in the central business district of Sydney.  We stayed at this hotel for about three to four hours.  Another man and woman came and picked me up and took me to a house in Liverpool.  The man I now know as Sitthisak Khampan did not travel with me.  The man who took me to Liverpool was named M Ah Van; the woman travelling with him was named Je Je (she also went by the name ‘Lili’).  I later became aware that Mr Van and Lili were married and that they ran the massage parlour where I worked in Sydney.  I was taken to a house in Liverpool where other girls who worked at the massage parlour were living.  About 10 people lived at the house including about 6 other girls who worked at the same massage parlour.

19.I was told by Mr Ah and Lili that I need to “stay at home and wait until my visa was approved”.  I was given papers to sign.  I was told these papers were for my visa and to enable me to apply for a visa to work.  At this time, my passport was also taken.  I was told this was also to enable me to apply for a visa to work.

20.I was told that I owed a debt and that I would need to work to repay that debt.  I was told I needed to do a certain number of half hour appointments with clients to pay the debt off.  I was also told that if I wanted my passport back I would have to make another payment.

21.Not long after arriving in Australia I was taken to an office by Mr Van.  I cannot remember where the office was located.  I understood this was an office of a lawyer.  I saw an older man of Asian appearance working at the office.  I do not know this man’s name.  Mr Van and I were taken into a room by this man.  Mr Van and the man spoke together.  I did not understand what they were talking about.  I remember the man saying to Mr Van that he “could not trust these ladies” and that “Mr Van needed protection”.  I do not know what the man meant by these statements.  I had a bad feeling about the man.

22.I was made to stay home when not working.  Sometimes we went out shopping or out for dinner but only under supervision  I sometimes thought about leaving but did not have my passport and did not know the area.  My English was, and still is, not very good.  We were never allowed out by ourselves.

23.I worked off the debt that I was told I owed in about 6 or 7 months.  They still did not give my passport back.

24.Whilst working I saw about 10 clients per day and got about $50.00 per client.  I had to give a lot of this money to my employer to pay off the debt I owed for my visa and debt I needed to pay to get my passport back.

25.After living in Sydney for about 6 to 7 months, I moved to Melbourne and worked for another massage parlour.  I moved on or about August 2002.  I was working for a massage parlour operated by the same people who operated the massage parlour in Sydney.  The people who owned/operated the massage parlour in Sydney organised everything.  I understand that my employer often ‘swapped’ girls between Sydney and Melbourne.

26.After working in Melbourne for a time, I met my fiancée, Hardy Yap.  Hardy was a client of mine.  We first met during October 2002.  He became a regular client and we got to know each other.  When I first met Hardy I was wary as I understood he knew one of my employers.  I thought my employer had sent Hardy to make sure I was not doing anything wrong.  However, after a while we developed a relationship and I wanted to get to know him better.  I thought he was a good man.

27.Whilst working in Melbourne, I learnt that my grandmother was very ill.  I got very upset.  I told my employers that if they did not let me leave and travel back to Thailand to see my grandmother that I would kill myself.  They gave my passport back and allowed me to leave.

28.I returned to Thailand during November 2002.

29.After returning to Thailand, I got in contact with Hardy again.  I wanted to see him again and spoke to him by phone, often.  I thought we might have a future with each other.  We communicated constantly.

30.During April 2003, Hardy travelled to Thailand.  We spent a lot of time together.  I introduced him to my parents.  While Hardy was staying with me and my parents he proposed to me.  I accepted, happily.  Everyone was very pleased.

31.After returning to Australia, Hardy sent money to me.  He thought I did not have enough to live on and care for my grandma.  I again lived with my grand mother at Chiang Rai.  My grand mother had serious health problems and she needed money for her medicines.  The money Hardy sent helped my grand mother.

32.We spoke often.  We made arrangements for our engagement ceremony to be held during January 2004. 

33.In December 2003, I met Hardy in Singapore.  We travelled together to Indonesia and I met his parents.  During January 2004 we went back to Thailand.  Our engagement ceremony was held on 10 January 2004.  Many of my family and friends attended.  It was a very joyous occasion.  Hardy then had to return to Australia.

34.When Hardy went back to Australia, he saw a migration agent to get advice about whether I could emigrate to Australia.  He was told that I could apply for a fiancée visa sponsored by Hardy, himself.  We started preparing the necessary paperwork.

35.Whilst preparing my application, the migration agent found that I had applied for a protection visa previously.  I understand this information was included in my application.  I did not know about this.

36.During April 2004, Hardy travelled to Thailand and we went to Australian embassy in Bangkok to lodge my application.

37.I understand from documents on the Immigration Department’s file that my application was refused as it was felt I was of bad character due to past and present general conduct.  I do not understand why they have done this.  I believe I am a good person and all I want to do is settle in Australia to be with my fiancée, Hardy Yap.

38.I understand it has been said I am not of good character because when I applied for my visitor visa during January 2002 I said the Singaporean man was my boyfriend.  I did this on the instructions of Mr Tik and Aa.  I was told this was to enable me to get my visa to come to Australia.  I did not mean any harm by this.  I was told this was what had to be done.

39.Further, I understand it has been said that I am not of good character because I incorrectly filled out the passenger card when arriving in Australia on 5 February 2002.  As I have said before, I cannot remember filling out this card but I may have been instructed by the man accompanying me to Australia. 

40.I understand that it has also been said I am not of good character because of the protection visa application lodged on my behalf.  I was told by my employer in Australia to sign many blank forms.  I do not know what they were.  Not long after entering Australia during February 2002 I was taken by my employer to see a man who I thought was a lawyer to sign paperwork.  I was told this paperwork would give me the right to work in Australia and enable me to stay for 12 months.  I signed the forms where I was told.  I did not intend to do anything wrong by doing this.

41.I was not aware that an application to Refugee Review Tribunal and Federal Court had also been made on my behalf.  Again I say that I was told to sign many blank forms by my employer.

42.The Department of Immigration also say I am of bad character because of my answer to the questions of the Immigration officer at interview conducted on 21 April 2004 concerning the Singaporean man named in the visitor visa application as my boyfriend.  As I said in my response to the Department of Immigration’s letter of 8 March 2005 stating that they were considering refusing my visa I was confused at this interview but sought to provide a more detailed response at the second interview on 15 June 2004.

43.I understand the Department say there is a high likelihood that I will mislead the Department in the future.  I do not agree with this.  I will not mislead the Department of Immigration in the future.  I feel I have been cooperative with the Department and open with them in answering their questions about my previous visit to Australia.  I note that I have applied for a temporary residence visa and that the Department have already agreed my relationship with my fiancée, Hardy, is genuine.

44.I feel I am the victim in this situation.  I did not set out to do anything wrong.  I was told by Mr Tik and Aa and my employers in Australia what to do to come and work in Australia.  I believe that when I travelled to Australia I would be able to stay and work as I had been told.  I was not treated very well in Australia by my employers.  I had to pay a large portion of my wages to my employers to pay the debt for my visa and to get my passport back.  It was only after I threatened to harm myself did my employer agree to give my passport back and let me go.

45.During November 2002, I left Australia of my own free will.  I was not deported or forced to leave.

46.I now wish to come to Australia to live with my fiancée, Hardy Yap, who will hopefully soon be my husband.  We are very much in love and dearly wish to be together, again.  I understand that the Department of Immigration agree Hardy and I are in a genuine relationship together. 

13.     In cross-examination, Ms Chai-inpan said that she intended to come to Australia to earn money and to “pay off my debt” (Transcript, page 34).  She agreed she understood that she was travelling to Australia to work in the “sex industry” and was not forced or tricked into travelling to Australia for that purpose.  However, she said that she did not know that she would be denied “freedom” nor that she would be “in debt” for 12 months to the persons who brought her here.  Ms Chai‑inpan also agreed that it was her intention to travel to Australia to work despite her declaration that she was entering as a visitor for five days.

14.     Ms Chai-inpan also agreed that she declared she had a boyfriend in Singapore who was travelling with her and that pretence assisted her in obtaining a visa to enter Australia.  She also agreed that she met with him and the persons who funded her travel to prepare for questions that may be asked of her by immigration officials upon arrival.  She also agreed that the answers to questions that she would provide, if asked, would not be true.

15.     Ms Chai-inpan also agreed that the contents of her passenger card were not true but she said that she could not recall whether she signed the card when it was blank or whether she signed it after someone else had completed it.

16.     After arriving in Australia and having been engaged in employment, Ms Chai‑inpan completed some other blank forms provided to her by her employer.  She said that she had been told that by completing the forms that she would be permitted to stay in Australia legally for 12 months.  She agreed that her address recorded on those forms was incorrect.  Ms Chai‑inpan said that she did not know at the time that one of the forms that she completed was an application for a protection visa.  Whilst she agreed that she now knows that such an application was made, she has also subsequently learnt that some other blank forms were completed by her being applications to the Refugee Tribunal as a result of a decision made by the Immigration Department to refuse her application for the protection visa.

17.     Ms Chai‑inpan said that she would not now complete blank forms if presented to her but she did so in 2002 when she was in Australia “because I had to do it, I need to do it” (Transcript, page 44).  She said that when in Australia she believed that she had permission to work but agreed that she did not ever see a visa or a document giving that permission.  She agreed that she did not ever approach the Immigration Department to seek clarification of her status in Australia nor did she ever approach the Tax Office or pay tax whilst working in Australia.

18.     The T‑documents contain a record of two interviews of Ms Chai‑inpan with Australian immigration officials and a letter completed by her on 1 April 2005 seeking to clarify some of her answers.  In evidence she said that she was confused during the first interview and despite giving a detailed explanation of her relationship with her “Singapore boyfriend” at first interview, she agreed at the second interview that that explanation was false.  She agreed that she did tell lies during the first interview but said that she was then confused and scared.

19.     Currently Ms Chai‑inpan lives in a small village in Northern Thailand.  She cares for her elderly grandmother and another family which has five children.

20.     In re-examination Ms Chai‑inpan agreed with questions put to her by Mr Gerkens that she now does not need to lie, and is sorry and regrets her previous behaviour.  She said that she lied to come to Australia in order to earn money because of the responsibility of caring for her grandmother.  She presently operates (with other persons) an FM community radio station in her village, having successfully applied for funding from the Thai Government, “to give information . . . to my community about the social and help the infectious people and the youth and the traffickers to come to give the information to public because I found that it is useful information to the community” (Transcript, page 52).

21.     Ms Chai‑inpan is also engaged in a project collecting second-hand books and clothing which is distributed locally by Toyota which has agreed to be a sponsor.

22.     In answer to some questions from me Ms Chai‑inpan said that she came to Australia because she felt sorry for her grandmother who did not enjoy good health.  She said she wanted to provide her with a better life.  That objective could be achieved by travelling to Australia and earning money which she could repatriate to Thailand.  In the event that she is given permission to enter Australia she said that her mother will care for grandmother and money will be sent back to Thailand.

submissions

23.     Mr Gerkens submitted that it was open to find that Ms Chai‑inpan did not pass the character test under Direction No 21 but if that finding was made the discretion available under the Direction should be made in her favour.

24.     Mr Gerkens acknowledged that Ms Chai‑inpan had been untruthful and had allowed other persons also to be untruthful for the purposes of obtaining unlawful entry into Australia.  However, it was submitted that on a broader picture, it should be found that Ms Chai‑inpan comes from a poor dysfunctional family in Thailand and in order to obtain monies to support and care for her grandmother, she decided to come to Australia.  Whilst acknowledging her evidence that she was not “forced” to engage in illegal conduct, he submitted that persons sometimes do undertake selfless acts and in the present case it should be observed that Ms Chai‑inpan is a young woman who travelled to an unknown country and who now admits that her behaviour was improper.

25.     Mr Gerkens relied on the decision of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 particularly at paragraphs 52, 55 and 56 in support of his submission that there is nothing in the past or present character of Ms Chai‑inpan that would rule against her being permitted to come to Australia but for the conduct which gave rise to her entry here in 2002. He submitted that she has subsequently been of excellent character in Thailand by her engagement in a community radio venture, her continued support for her grandmother and another family and her involvement in collection of second-hand books and clothing which is distributed to impoverished persons. In support of his submissions, Mr Gerkens drew comfort from the Tribunal decision in Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 where the Tribunal, in the exercise of its discretion, decided that a person of Chinese origin who knowingly made a protection visa application which was false should be permitted, because of the circumstances of the application, to remain in Australia.

26.     In the event that it was found that Ms Chai‑inpan was not of good character it was submitted that a favourable discretion should be exercised.  It was submitted that the relationship between Mr Yap and Ms Chai‑inpan was not in issue, that he has lived in Australia for 16 years and has held regular full-time employment with the Ford Motor Company.  He resides with family members in Melbourne and intends to pursue his relationship with Ms Chai‑inpan preferably in Australia or in the event the application is unsuccessful, in Thailand or Indonesia.  It was submitted that the expectations of the Australian community would regard Ms Chai‑inpan with compassion and denying her entry into Australia would cause significant hardship.

27.     Mr Brereton, on behalf of the Minister, submitted that Ms Chai‑inpan was engaged in immigration fraud and on a number of occasions provided false information in order to gain entry into, and to remain in, Australia.  He submitted that she was aware that she was not intending to enter Australia on a visitor’s visa for the purposes of a holiday but rather knew at all times that she intended to work in order to earn monies.  She agreed to sign blank documents and other forms for that purpose and or to remain here.  He also submitted that she gave false information and told lies at an immigration interview.  In these circumstances past conduct should not be ignored, despite her current admissions, and it should be found on balance that she is not of good character.

28.     Mr Brereton relied on the Tribunal decision of Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022 particularly at paragraph 73 where Deputy President Chapel commented upon persons who give false information by asserting that they relied upon or were manipulated by other persons. Additionally, it was submitted that the conduct of Ms Chai‑inpan should be regarded as being reckless because she was knowingly involved in the provision of false or misleading information and to that extent he relied on Tribunal decision of Re Adikarta and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1071 particularly at paragraph 33.

29.     Having regard to Ms Chai‑inpan’s conduct and the circumstances which caused her to be given permission to enter Australia, it was submitted that it was of such weight and seriousness that Ms Chai‑inpan does not pass the character test.  Mr Brereton submitted that the decision in Barnett should be distinguished because that Applicant was naïve and by that naivety became involved in a false passport scam and was then “in debt”.  In the present case it was submitted that Ms Chai‑inpan entered Australia knowing that her entry was on a false premise and involved the provision of false information.

30.     Mr Brereton acknowledged that there was a residual discretion available to be exercised in favour of Ms Chai‑inpan however on balance it was his submission that general deterrence should be found as a basis to avoid the discretion being exercised.  He relied on a decision in Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96 where Deputy President Walker commented on the need by way of deterrence to send a message back to other countries that persons who enter Australia as a result of the provision of false information “cannot expect to be rewarded subsequently” with the issue of a visa for permanent residency.  Additionally, he relied on a decision in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 where the Tribunal then decided that the provision of false documentation, in that case a false passport, contravened migration legislation (paragraph 47) because it struck at the foundation of independent democratic states to determine who it would allow to enter and reside.

31.     It was submitted that upon the evidence of Mr Yap, he would be prepared to travel to Indonesia or Thailand to enjoy his permanent relationship with Ms Chai‑inpan in the event that her visa application is refused.  It was conceded that the Minister did not take issue with the relationship between Ms Chai‑inpan and Mr Yap but on balance the seriousness of her conduct, the absence of evidence that she did come from a poor or dysfunctional family and her resorting to immigration misconduct was particularly of such a weight that even if it were found that she was motivated to enter Australia to earn money to care for her grandmother that the latter did not attract sufficient weight to permit the discretion to be favourably exercised in her favour.  It was not submitted that the Minister would expect Mr Yap to forego his Australian citizenship by residing in either Thailand or Indonesia in the event that the current application was unsuccessful because should he choose to leave Australia it would be a decision of his making.  It was however acknowledged that there was no evidence before the Tribunal that Mr Yap would be permitted to reside in Thailand or that Ms Chai‑inpan would be permitted to reside in Indonesia.

32.     In reply, Mr Gerkens pointed to paragraph 3 of Ms Chai‑inpan’s statement where she recorded that her parents divorced when she was one year old, her family was poor, her father moved to live in another village, her mother remarried and she (Ms Chai‑inpan) lived with her grandmother.  Additionally, the statement records that her grandmother was poor, they lived frugally, the economic situation became worse as she grew older and her grandmother became ill.

33.     It was submitted that Ms Chai‑inpan’s motivation should be considered in the context of a young female person living in Thailand as opposed to young female persons living in a prosperous country like Australia where there are significant differences between cultures and between economies.

conclusion and reasons for decision

34. Section 499 of the Migration Act empowers the Minister to issue Directions “to a . . . body having functions or powers under this Act”.  The Directions concern the performance of those functions or the exercise of those powers.  The Minister has issued Directions known as Direction 21.  Sub-section (2A) provides that there must be compliance with those Directions when deciding whether a visa shall be cancelled or refused.  In the review of a decision made by a Minister’s delegate, Members of the AAT are required to have regard to those Directions.

35. Under s 501, a delegate of the Minister may refuse a visa if the visa applicant does not pass the character test. Under s 501(6) a person does not pass the character test if one or more of the criteria recorded by the sub-section applies. In the present case the relevant criteria is found at (c) namely:

(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;

36.     Paragraph 1.8 of Direction 21 give directions with respect to a person’s past and present criminal conduct.

37.     The Minister’s delegate (T‑documents, pages 17 – 19) decided that Ms Chai‑inpan was “deemed not to be of good character due to her past and present general conduct and not to pass the character test by virtue of s 501(6)(c)(ii) of the Act”.  The decision-maker then proceeded to Part 2 of Direction 21 and decided that Ms Chai‑inpan had engaged in activities that were considered to be “very serious” (in consideration of one of the three primary considerations under Part 2.3 of Direction 21) namely “the protection of the Australian community; and members of the community”.  Relevantly it was decided that Ms Chai‑inpan had been engaged in “serious crimes” under Part 2.6(c) which in the present case concerns “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”.  (The other conduct listed against “serious crimes” in this Part do not apply in the present case).

38.     In justification for the decision that the activities of Ms Chai‑inpan should be regarded as very serious, the Minister’s delegate decided that she had been engaged in “people smuggling” which had the risk of threatening Australia’s migration program and the integrity of its borders.  It was decided that she entered Australia upon a visitor’s visa but with the intention only of engaging in employment, had repeatedly provided false and misleading information and she had “shown a blatant disregard for Australia’s immigration laws”.  Whilst the delegate recorded that he did consider her comments with respect to her past behaviour, he regarded that behaviour had a degree of seriousness attracting weight greater than the reasons given by Ms Chai‑inpan.

39.     A close analysis of the reasons for the delegate found at paragraph 44 indicates that he considered that she provided false and misleading information with respect to applications made for a visitor’s visa, a protection visa “and her current spouse visa”.  This clearly suggests that the delegate considered that the conduct of Ms Chai‑inpan with respect to her entry into Australia in 2002 and her residence in Australia in 2002, when a visitor’s visa was sought and granted and a protection visa was sought and refused.  The application for the ‘current spouse visa” is the subject of review by these proceedings.  It follows that the delegate has not only considered Ms Chai‑inpan’s past conduct but is of the view that there was false or misleading information with respect to the spouse visa for which she has recently applied and which is the subject of these proceedings.

40.     The balance of the delegate’s decision concerned his consideration as to whether there was any likelihood of past conduct being repeated and decided that because she had “demonstrated a consistent pattern of misconduct” there was a “moderate” chance that she would engage in similar conduct.  Additionally, it was decided that refusal of the current application would deter other non-citizens who might engage in similar activities.  It was decided that “refusal in this instance may provide a deterrent effect” but it was considered not to be “a significant factor”.  It was decided that the serious nature of Ms Chai‑inpan’s past activities would cause the Australian community to expect that her application would be refused.

41.     With respect to “other considerations”, the delegate noted that Ms Chai‑inpan was engaged to marry Mr Yap who was an Australian citizen and that their relationship commenced while she was in Australia.  He noted that it was the desire of both Ms Chai‑inpan and Mr Yap to reunite in Australia.  However, whilst noting that Mr Yap “may suffer emotional and financial hardship”, should the application be refused, he also noted that there were “no known circumstances preventing Mr Yap from relocating to Thailand”.

42.     The summary of materials provided to the delegate recorded that the relationship between Mr Yap and Ms Chai‑inpan “has been assessed as genuine and continuing” (paragraph 29 at page 14).  The delegate himself did not make a similar finding although he “noted” that Ms Chai‑inpan was engaged to marry Mr Yap. 

43.     In the present case Mr Brereton, on behalf of the Minister, conceded that the relationship between Mr Yap and Ms Chai‑inpan was genuine and is continuing.  Additionally, he conceded that Ms Chai‑inpan’s employment in the “sex industry” in Australia was not relevant in the present case to the assessment of her character.  The concessions made by Mr Brereton are appropriate.  I also note that the delegate did not decide that Ms Chai‑inpan had been engaged in “past and present criminal conduct”.  It was his decision that she was deemed not to be of good character because of past and present general conduct.  The absence of a finding of past and present criminal conduct is also appropriate.

44. In the present case the Minister’s delegate decided that Ms Chai‑inpan did not pass the character test (with regard to s 501(6)(c)(ii)) because “she is deemed not to be of good character due to her past and present general conduct”.  It would appear that he had regard to paragraph 1.9(a) because of her “breaches of immigration law” and because she “provided a bogus document or made a false or misleading statement”.  In my view, to have found that Ms Chai‑inpan is “deemed” not to be of good character under this Part is wrong.  It would appear that the delegate had regard only to past general conduct without having regard to “countervailing factors” and “recent good conduct”.  In fairness the bulk of the positive character information concerning Ms Chai‑inpan has become available subsequent to the delegate’s decision but there does not appear to be, in the delegate’s decision, any balancing of “good and bad conduct” in the proper exercise of the discretion ‑ which is required to be exercised ‑ when making a finding, as opposed to a deeming, of good character.

45.     As a fact, I am satisfied that Ms Chai‑inpan did enter Australia by making false declarations and upon a false premise.  I am also satisfied that whilst in Australia, contrary to the permission granted by the visa she did work contrary to the visitor’s visa granted to her and earned money for which income tax was not paid.  I am satisfied that she was aware that her entry into Australia was by a contrivance in which she was a willing participant.

46.     If nothing more was known, that conduct would certainly constitute past general conduct of such weight giving rise to a finding of an absence of good character.

47.     However, much more is known.  Ms Chai‑inpan intended to come to Australia for the purpose of earning monies to repatriate to Thailand to provide adequate care for her grandmother.  I accept her evidence given in this regard and I also accept that it is truthful.  Once in Australia, Ms Chai‑inpan became enslaved to a number of sinister people who withheld her passport, kept her detained and exploited her for their financial gain.  It is true that she did complete blank forms when in Australia, which appear to have been applications for a protection visa and subsequently appeals against the refusal of the granting of that visa, but in the absence of any evidence that she then read or spoke English, those forms were for the purposes of ensuring an extension of her stay in Australia.  As I have indicated above, much of Ms Chai‑inpan’s motive and the manipulation of her whilst in Australia was not known to the Minister’s delegate.  They do constitute matters which should be balanced against the past general conduct.

48.     Much more is now known about Ms Chai‑inpan which, in my view, attracts and permits a finding of good character with respect to “present” general conduct and conduct generally over many years.  Because it is now known, it permits a finding that she is in fact of good character.  The sub-section in issue, is conjunctive in construction.  It requires a finding with respect to both past and present general conduct.  That is to say, past general conduct alone would not justify a finding that a person is not of good character.

49.     The need on the part of Ms Chai‑inpan to care for her grandmother is not recently invented.  It is consistent with her statement which was received into evidence as her evidence-in-chief, namely that she lived with her grandmother from a young age after her parents divorced and her mother remarried.  In the statement she recorded that she and her grandmother were poor, they lived frugally, their economic situation became worse as she grew older and her grandmother became ill.  The financial situation was apparently so poor that at the age of 15 she left her village and moved to Bangkok and worked in bars to earn monies to provide for her grandmother.  She performed that work because she “did not want to be a burden” on her grandmother (paragraph 4).  That Ms Chai‑inpan lived with her grandmother from a young age and subsequently cared for her is corroborated by the witness statements of Mrs Pijja and Mr Chuchai.

50.     Additionally, the witness statements record that as a student Ms Chai‑inpan achieved good results and was awarded prizes consistent with her academic achievements.  She has donated monies to assist in the renovation of a temple in her village, she has established a community radio station and produces and presents community based programs.  One of her programs is broadcast nationally in Thailand.  She has been engaged in the collection of books and clothing for distribution to disadvantaged children and has secured the assistance of the Toyota Motor Corporation as a sponsor.  She is presently engaged in university studies.  Ms Chai‑inpan continues to care for her grandmother who has been diagnosed with Alzheimer’s disease.  She also cares for another family which has five children.  Mr Chuichai regards Ms Chai‑inpan with “gratitude high, kind merciful”.  Mrs Pijja describes Ms Chai‑inpan as a person ‘who has good heart, kind and merciful”.

51.     The conduct of Ms Chai‑inpan which has given rise to the delegate’s decision occurred four years ago.  Much has subsequently been learnt about her and it would appear from her involvement in her village that she is of a caring nature both to her immediate family and to others.  She is obviously well respected.  I cannot be satisfied that the conduct of Ms Chai‑inpan, especially in recent years, “shows a lack of enduring moral quality” (refer Godley at paragraph 56). Additionally, I could not be satisfied that (Godley at paragraph 77):

. . . it is demonstrable that this applicant is not of good character thereby giving sufficient cause for the Minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entrance to that person.

52.     Whilst I am satisfied that more than sufficient weight should be attracted to Ms Chai‑inpan’s present general conduct thereby permitting a finding that she is of good character, if that analysis was incorrect I would be satisfied that she would in any event satisfy the provisions of Part 2 of Direction 21.

53.     The relevant criteria under the protection of the Australian community and members of the community is to be found at paragraph 2.6(c) namely; the presenting of false documents and making false statements in connection with entry to Australia which for the purposes of this part of the Direction is regarded as “serious crime”.  However, under Part 2.8, decision-makers must exercise the discretion by reference to “mitigating factors”.  Those factors in mitigation are referred to earlier and on balance I would find that more weight is to be attracted to them than the offences found at paragraph 2.6(c).  I could not be satisfied that the past conduct of Ms Chai‑inpan is likely to be repeated and in the event that the visa is granted to her, and she enters Australia and marries Mr Yap, which as a fact I am satisfied would occur, there would be nothing on the evidence heard which would point to the need for her to engage in any further immigration illegality or misconduct. 

54.     General deterrence is a relevant criteria under this part of Direction 21.  Mr Brereton submitted that the past conduct of Ms Chai‑inpan with respect to her application to enter Australia is well known in Thailand and her application should be refused to deter others from committing or engaging in similar conduct.  The Minister’s delegate found that refusal of the visa may deter others but he did not regard it as a significant factor and placed little weight on that consideration.  Whilst it cannot be denied that visa cancellation may discourage other persons from engaging in similar conduct to the conduct committed by Ms Chai‑inpan in the past, it must be regarded as speculative only.  It would be of relevance only if her current visa application is refused and is then known by others to have been refused because of her past conduct.  I would have thought that deterrence might be achieved if Ms Chai‑inpan had been deported from Australia, that is her visa had been cancelled, when she was here in 2002 because of findings then made with respect to her conduct then, and the manner in which she gained entry into Australia.  Any finding now, I would have thought, would be of less value as a deterrent because it is not contemporaneous with the conduct which might have given rise to visa cancellation in 2002.  Additionally, this review also concerns Ms Chai‑inpan’s conduct in recent years.  The proposition of deterrence assumes that the person who has had their visa cancelled is a member of a community which is likely to learn of that decision and the reasons for the making of that decision.  There is no evidence that Ms Chai‑inpan associates with persons who intend to enter Australia by offending the Migration Act.

55.     The expectations of the Australian community are a consideration under Part 2 of Direction 21.  On the one hand the Australian community would expect that non-citizens obey Australian laws.  However, the conduct of Ms Chai‑inpan against the Australian Migration Act occurred four years ago, she voluntarily removed herself from Australia, she was not convicted of any offences in Australia or in respect of that past conduct and in the event that a visa was granted to her I am not satisfied that she would again offend in a similar manner or at all.  It is my view that there is a significant proportion of the Australian community who would regard her past motives with both sympathy and compassion, just as they would hold her in high regard for her conduct and community involvement since returning to Thailand.  I am not satisfied on balance that the Australian community would expect that she should not be granted with a visa.

56.     The best interests of a child are not a relevant circumstance in the present case.

57.     In all of the circumstances, having regard to the information which has become known about Ms Chai‑inpan subsequent to the decision under review, to her evidence and the evidence of Mr Yap, I am satisfied that the decision under review should be set aside and in substitution for it, I have decided:

(i)Ms Chai‑inpan does pass the character test; and

(ii)The application is remitted to the decision‑maker for reconsideration with a Direction that the visa sought not be refused pursuant to s 501 of the Migration Act 1958.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         .....................................................................................
  Personal Assistant

Dates of Hearing  5 April and 22 May 2006
Date of Decision  13 June 2006
Counsel for the Applicant         Mr M Gerkens
Solicitor for the Applicant          FCG Legal Pty Ltd
Solicitor for the Respondent     Mr M Brereton