Van Truong and Minister for Immigration and Multicultural Affairs [2002] AATA 126 (28 February 2002)

Last Updated: 6 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 126

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/493

GENERAL ADMINISTRATIVE DIVISION )

Re PHUOC VAN TRUONG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

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

Date 28 February 2002

Place Brisbane

Decision The Tribunal decides that the application for review be allowed and the matter remitted to the respondent with a direction: (a) THAT the visa application on behalf of Truong Thi Kim Phuong be withdrawn and disposed of. (b) THAT the visa application by the other three visa applicants is to proceed with expedition. (c) THAT such applications are not to be refused on the basis that the visa applicant Truong Thi Son has failed to pass the character test under s.501 of the Migration Act 1958.

[Sgd Hon C R Wright]

Deputy President

Decision No:

CATCHWORDS

Immigration - alleged fraudulent statements and documents - allegations not proved but visa applicant fails to positively establish good character - equipoise - Tribunal's exercise of discretion.

Migration Act 1958 - s501

REASONS FOR DECISION

28 February 2002 The Hon. C R Wright QC., (Deputy President)

1. The relevant facts, contentions and issues in this case have been set out clearly in the respondent's documents.

2. The central issue is whether or not the visa applicant, Mrs Troung, is of "good character" within the meaning of the Migration Act 1958 ("the Act"). This phrase has been discussed in numerous decisions which need not be reviewed in detail for the purposes of this decision. The meaning of the phrase is clear enough.

3. The basis of the obligation that the visa applicant is not of good character is to be found in the proposition that she has provided a bogus document and false information as to her younger daughter's marital status. The claim that this material is false is, in turn, based upon the absence of confirmation from official sources of the registration of the claimed marriage.

4. The question whether or not the marriage took place as alleged by the visa applicant is very material to the visa application because the younger daughter was joined as dependent child in the visa application and her serious illness, discovered on medical examination, was determined by the Department and, later, by the Immigration Review Tribunal to provide a sufficient basis for refusing the application by the visa applicant and her other children to join the review applicant in Australia.

5. The review applicant migrated to Australia from Vietnam as a refugee several years ago. He has since taken out Australian citizenship and wishes his family to be reunited with him in this country.

6. It is claimed on this review that the visa applicant's younger daughter did in fact go through the marriage procedures alleged and that the absence of an official record confirming this is simply an unexplained mistake.

7. Certain letters passing between the younger daughter and her father, the review applicant and between the visa applicant and the review applicant were referred to in the evidence. Oral evidence was also taken from the visa applicant and her younger daughter, Phuong.

8. The younger daughter who is now aged 26 years, claims that the marriage was shortlived as her husband left her soon after due to his learning of her serious and incurable illness. She says that she has since remarried and is self supporting as she conducts a successful and profitable trading business. If this is true there is no need for her to be considered as a continuing member of the family unit applying for entry to Australia. This however does not resolve the question whether or not the visa applicant's character has been so compromised that she should be refused a visa.

9. It is submitted that her inability to provide basic details of the marriage when interviewed by a DIMA official in Ho Chi Minh City earlier this year provides confirmation that the copy marriage certificate provided, and the allegation that the marriage had taken place, were false and were deliberately used in an attempt to perpetrate a fraud upon the Department.

10. The visa applicant attempted to explain the apparently unsatisfactory interview by saying that she misunderstood some of the questions asked or that her responses were caused by language ambiguities arising from the translation.

11. Often such excuses may be regarded as highly suspect, but in the circumstances of this case my prima facie scepticism has been allayed by a consideration of the circumstances attending the alleged marriage.

12. It is plain to me that Phuong saw marriage as a means of removing herself from the family unit and by doing so, allowing her mother and siblings to secure the visa for which they had applied. This course was opposed by her mother and other senior relatives and was plainly regarded askance by other members in their community who manifested their disapproval (if I accept the applicant witnesses evidence) by remaining absent from the simple ceremony which Phuong arranged. According to Phuong's account her husband lived in a different province and they left her home province soon after the marriage. If these circumstances are true, I think the mother's uncertainty as to the details of the wedding when interviewed about it nearly 2½ years later and her assumption that her daughter and her husband (Nam) were still living together, even though they had in fact parted could be regarded as not very surprising. According to her evidence the daughter did not inform her mother of the separation and continued living away from home. The marriage, as described, was plainly contrived by the daughter as a means of avoiding the remainder of the family being excluded from Australia and it was obviously unlikely to succeed as an enduring union, but these considerations have little or nothing to do with the present claim by DIMA that bogus documents and false information have been provided by the visa applicant.

13. As to that issue, the absence of any official confirmation of Phuong's marriage to Nam obviously raises serious questions as to the authenticity of the Marriage Certificate and the Marriage Application, both of which are in evidence.

14. When the matter was before me on 14 December last year it was adjourned so that the original documents as to which there is a dispute as to authenticity could be obtained. On reflection it is regrettable that this issue should ever have arisen because it seems clear beyond dispute that the visa applicant should have been permitted by DIMA to withdraw Phuong as an applicant. An unsuccessful attempt to do this was made as long ago as 11 June 1997 by the review applicant's solicitors (see Departmental memo T43, T documents, Folio 277-278) and was followed by a further written request to the Immigration Review Tribunal by the review applicant on 4 December 1998.

15. The Tribunal in the course of its decision published on 24 December 1998 accepted that Phuong should be removed from the application. It also made findings as to Phuong's marriage which, arguably, should have precluded DIMA from seeking to re agitate that issue thereafter. Again regrettably, DIMA appears not to have taken this view and inquiries were made which led DIMA to conclude that the claimed marriage between Phuong and NAM had not taken place.

16. The visa applicant's attempt to remove her younger daughter as a party to the application when first made in 1997 were based upon the proposition that she was an independent adult person and was no longer a dependent child of the applicant. When that attempt proved unsuccessful the additional ground for her removal i.e. her marriage to NAM, was advanced by McDonald and Associates (Migration Consultants) on 2 November 1998 (T33, T docs. folio 227). In their letter to the IRT on that date McDonalds said (inter alia) "I am instructed by the Appellant that his daughter (Phuong) married on 9 February 1998, and is living in the Provincial City of Vinh Lang where she and he husband are operating a small tailoring shop". ... "Enclosed is the daughter's Marriage Certificate and translation". In fact the evidence given before the present Tribunal clearly shows that the "Marriage Certificate" referred to was an "Application for Marriage Registration" not a "Marriage Certificate". The "translation" which is in English is in form a "Marriage Certificate" certifying the marriage of Phuong and Nam on 9 February 1998, and it purports to have been signed by Thach Sa Monl, Vice Chairman of Chau Dien Village. Despite previous requests by Departmental officers and this Tribunal on the first day of the hearing (14 December 2001), the original Vietnamese Marriage Certificate has not been produced and its absence has not been satisfactorily explained. Coupled with the inability of the Vietnamese authorities to verify the marriage from official records and certain unsatisfactory aspects of the visa applicant's interviews with DIMA officer Stewart in Vietnam, it is not altogether surprising that Mr Stewart the Minister's delegate who made the original determination came to the following conclusions:

"In the evidence before me I consider that Truong Thi Kim Phuong was never married to Tang Khanh Nam and that they were never spouses. In making this finding I have given weight to the report from the Vietnamese authorities that no application for marriage or a marriage certificate exist, your inability to provide basis information regarding the relationship when interviewed, the contradiction in your statement at interview that Truong Thi Kim Phuong and Tank Khanh Nam were at that time living together and Truong Thi Kim Phuong's recent statement that they ceased living together at some time prior to your interview. I consider it totally implausible that there would be no record of either a marriage (cf folio 135) application or marriage certificate if these events had taken place and the relevant documents had been issued. On the basis of this I am satisfied you have made false and misleading statements to the Department and provided bogus documents."

17. I have given full weight to these arguments which were, in effect, adopted by counsel for the respondent and I have given anxious consideration to the oral and documentary evidence given at the hearing (including in particular Exhibits "A" and "B" tendered in evidence on 8 February 2002). NonetheIess I am left with a very real doubt as to the aspersions cast upon the visa applicant's character. In reaching this state of mind, I have accepted Mr Gallo's submission that the substance of the manuscript in both Exhibits "A" and "B" has been written by the same person and I am even prepared to assume (although Mr Gallo baulked at requesting me to so conclude) that the hand writing is that of Phuong. This in my view neither compromises the authenticity of the documents nor casts doubt on the truthfulness of the applicant or her daughter.

18. Whilst I do not positively accept the evidence of the visa applicant, I am unable to reject it. In short, despite a prolonged attempt to resolve the issue to my own satisfaction, I am in a state of equipoise. This means, of course, that the visa applicant fails to satisfy me that she is of good character.

19. The question of my exercise of discretion therefore arises. Mr. Gallo submits that I should approach that question on the basis that the adverse character allegations raised against the visa applicant have been substantiated, but in my opinion that cannot be either right or fair.

20. I have taken account of the relevant Ministerial Direction in approaching the discretion issue but in the absence of my being able to make findings on crucial factual issues those directions are of limited assistance.

21. If the allegations of bad character had been positively established, I would probably have concluded that the discretion should be exercised against the visa applicant. The misconduct alleged was, after all, very serious and involved a concerted plan of deception pursued over a substantial period of time.

22. However I have not reached such a conclusion. At best from the respondent's point of view, I regard the documents as ambiguous and suspicious. This does not warrant such a draconian approach being taken as to refuse the visa application when all other relevant factors are considered. The visa applicant and review applicant have been separated for many years. The review applicant has suffered many privations before coming to Australia and is now in ill health. The medical reports clearly support the conclusion that his condition would be enhanced if his family were able to join him in Australia.

23. In my opinion a fair exercise of the discretion requires that the application to review should be allowed and the matter should be remitted to the respondent with a direction:

(a) That the visa application on behalf of Truong Thi Kim Phuong is withdrawn and disposed of.

(b) That the visa application by the other three visa applicants is to proceed with expedition.

(c) That such applications are not to be refused on the basis that the visa applicant Truong Thi Son has failed to pass the character test under the Migration Act 1958 s.501.

I certify that the 23 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 (Personal Assistant)

Date/s of Hearing 13, 14 December 2001. 14 January 2002. 8 February 2002

Date of Decision 28 February 2002

Representative for the Applicant Mr T Dinh Tran

Counsel for the Respondent Mr D Gallo

Solicitor for the Respondent Blake Dawson Waldron