Ung and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1339 (20 December 2002)

Last Updated: 8 January 2003

DECISION AND REASONS FOR DECISION [2002] AATA 1339

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1227

GENERAL ADMINISTRATIVE DIVISION )

Re SONG MEANG UNG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date 20 December 2002

Place Melbourne

Decision The decision under review is set aside and the matter remitted to the respondent for reconsideration with a direction that the visa application not be refused under s501 of the Migration Act 1958.

[Sgd S P Estcourt QC.,]

Deputy President

CATCHWORDS

Immigration - false and misleading conduct in dealings with immigration authorities - whether fails character test - Ministerial Direction No 21 - countervailing factors - decision to refuse set aside.

Migration Act 1958 - s501

Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463

Goldie v Minister for Immigration and Multicultural Affairs (14 September 1999) FCA 1277

REASONS FOR DECISION

20 December 2002 Mr S P Estcourt QC., (Deputy President)

1. This is an application by Song Meang Ung ("the review applicant") for the review of the decision of a delegate of the respondent to refuse to grant an application made by Liv Yi Tan ("the visa applicant") for the grant of a sub-class 309 Spouse (Provisional) visa on the grounds that the visa applicant did not pass the character test within the meaning of s501 of the Migration Act 1958 ("the Act").

2. Section 501 of the Act provides relevantly:

"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.

...

501(6) For the purposes of this section, the person does not pass the character test if:

...

(c) having regard to either of the following:

...

(ii) the persons past and general conduct;

the person is not of 'good character'."

3. The exercise of power under s501 of the Act involves, first a consideration of whether the visa applicant is of good character and second, of whether a discretion not to refuse to grant 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.

4. In considering whether a non-citizen is not of good character, decision-makers are required by Ministerial Direction No. 21, (made under s499 of the Act to provide guidance in making decisions to refuse or cancel a visa under s501), to consider a number of matters which where relevant, would in the absence of any countervailing factors constitute a failure to pass the character test.

5. Ministerial Direction No.21 binds the Tribunal.

6. On 11 March 1996, the visa applicant's mother applied to visit Australia for tourism purposes. In her tourist visa application she stated that the visa applicant's name was Ly Hong Lim, that she had two siblings, Ly Heang Lim and Ly Hour Lim, that the visa applicant's father was Chiv Lim, that he was still alive and that the visa applicant's mother's own name was Leang Heng. In support of the visa applicant's mother's tourist visa application she filed supporting documentation including a family book and an identity card.

7. On 19 January 2000 the visa applicant applied for a spouse visa under the name of Liv Yi Tan. She filed documents as part of her application confirming her name. These included a birth certificate, a marriage certificate to the review applicant, a bulletin of judiciary case, a family book, an identity card and a character certificate.

8. The visa applicant was interviewed at the Australian Embassy on 22 June 2001 and was asked:

"Has any member of your family ever applied for a visa for Australia."

She answered "No".

She was then asked to identify a photograph on a tourist visa application lodged by a Meng Leang in March 1996 and she identified her mother. She stated her own name as Liv Ye Tan and told interviewers that she was an only child. After further questioning about her mother's tourist visa application she said:

"This application does not concern me, it is not my mother's application."

9. During the course of the interview she also told immigration authorities that her marriage to her husband "was an arranged marriage".

10. The visa applicant's spouse visa application was subsequently refused on the basis that she failed the character test because she lied at interview about her knowledge of her mother's false tourist visa application, and on the basis that her marriage was an arranged marriage entered into solely for the purpose of facilitating migration to Australia.

11. As to the visa applicant's statements at interview concerning her knowledge of her tourist visa application, the visa applicant said in evidence before the Tribunal that she apologised for what she did, that recalls that she was told of the importance of telling the truth, that she had never been to the Australian Embassy before, that she had never been to an interview before, and that she was very nervous and very worried. She intimated that the lie was spontaneous, that it was not her intention to lie and that when she did start she didn't know how to get out of it.

12. I will deal with this aspect at once as, for the reasons I will shortly give, I am satisfied that the visa applicant has in all other respects been truthful and that whilst her marriage may have been arranged in the sense that her mother was involved in making the match, she was not forced to marry. I am also satisfied that the marriage was not a sham.

13. It is true that one lie, depending on its circumstances, is sufficient to cause a person to fail the character test when that lie is in the context of dealings with migration officials. As was said by the Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 at 470:

"We do not think there is any warrant for extracting from the broad word 'general', a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly."

14. Relevantly to this application however, the notion of character within the context of s501 of the Act was explained by the Full Court in Goldie v Minister for Immigration and Multicultural Affairs (14 September 1999) FCA 1277 at paras. 5-7, where Spender, Drummond and Mansfield JJ said:

"The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities is so deficient as to show it is for the public good to refuse entry." (emphasis added)

15. As I have already pointed out, Ministerial Direction No. 21 which binds the Tribunal, requires it to consider a number of matters which, where relevant, would in the absence of any countervailing factors constitute a failure to pass the character test. One of those matters is:

"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."

16. I am not at all sure that having identified the photograph of her mother as the applicant on an application for a tourist visa lodged by a person called Meng Leang that the visa applicant's "knee-jerk" denial of knowledge was a false and misleading statement in a material respect. However, assuming for the moment that it was, I am satisfied, given the visa applicant's explanation for her aberrant behaviour, that such isolated conduct in her case does not demonstrate that her enduring moral qualities are so deficient as to show it is for the public good to refuse her entry to Australia.

17. I also regard the circumstances of the interview, and the desperation expressed by her as to not being able to join her husband in Australia as countervailing factors within the meaning of Ministerial Direction No. 21 such that I am satisfied that she does not fail the character test on the basis of that isolated conduct alone.

18. As to the visa applicant's identity. I am satisfied that her true name is Liv Yi Tan and that she is the only daughter of Leang Heng who was widowed when her husband died during the excesses of the Pol Pot regime.

19. I had evidence to that effect from both the visa applicant and her mother. That evidence was not contradicted and having considered what they said, and the way in which they said it, I am satisfied that they were both witnesses of the truth.

20. As to the genuineness of the marriage, I set out the full exchange between the visa applicant and the interviewing officer at her interview in Phnom Penh on 22 June 2001:

"30. When did you become engaged (date, full ceremony details, and after celebrations)?

A. On the day he arrived 30 December 1999 we got engaged, he asked for the marriage the same day. [That was very quick, you didn't really have time to get to now each other] We knew each other through his Aunt. [But how can you know someone without meeting him or writing letters or making phone calls?] His Aunt and his Mother are close friends everything was arranged by them [So it was an arranged marriage?] Yes [But your sponsor's statutory declaration states that it was not an arranged marriage!] That is not correct I have just known him on 30 December 1999. [But that's what the statutory declaration says - I show the applicant the declaration dated 22 August 2000] We had no contact before 30 December 1999 it was an arranged marriage."

21. In the light of that material, the respondent's delegate may well have been quite entitled to take the view he did as to the nature of the marriage between the review applicant and the visa applicant. The Tribunal however has had the benefit of being able to hear and assess viva voce evidence given by the review applicant and the visa applicant together with that of the visa applicant's mother and her aunt Ling Chen La, all of which evidence the Tribunal has no hesitation in accepting as truthful.

22. The review applicant who has two children from an earlier marriage went to Cambodia on about 27 December 1999 to see his aunt and to discuss his future with her. He had been to Cambodia earlier in 1995 and had talked then to her about getting married again. She had already mentioned someone to him, but he hadn't taken much notice of the details of the person concerned. On about 30 December 1999 his aunt took him to meet the visa applicant and her mother, and her two aunties. On this first meeting they had a short talk and then it was decided that everyone would go to a local restaurant.

23. At the restaurant the review applicant had a short conversation with the visa applicant, and after that everyone went for a walk on a mountain where the review applicant and the visa applicant walked ahead. The review applicant said he got along well with the visa applicant, that he told her about his first wife and that she understood and accepted that he had been married before and "seemed to love" him.

24. The review applicant met with the visa applicant again the next day, and the day after that and on those days they exchanged information about the different lifestyles in Australia and Cambodia. They first talked about marriage on the first day after their meeting and the meal at the restaurant, and the visa applicant agreed to the marriage subject to involving "the elderly people" who would arrange for a fortune teller to find out a suitable date to be married.

25. The review applicant said that they were married as a result on 10 January 2000 and that their wedding was a traditional ceremony attended by 250 guests, all of whom, with the exception of the review applicant's aunt, came from his wife's side.

26. After the wedding the couple stayed at the visa applicant's house for eight nights where they had their own room and consummated the marriage. They then went to Phnom Penh where they visited the review applicant's aunt for five nights and the visa applicant's cousin for another four nights.

27. Thereafter the review applicant returned to Melbourne to continue to look for work. He said he was very emotional at being separated from his wife, but it was financially impossible for him to remain any longer.

28. The review applicant told the Tribunal:

"I loved my wife 100% when I married her. I married her because I noticed she was a very gentle person and her character was very good and she took care of people and worked very hard in the family."

29. As previously mentioned, the visa applicant's aunt, Ling Chen La confirmed that the couple's marriage was recognised and accepted by the village. She went to the wedding. She had in fact organised it. It was a traditional Cambodian wedding.

30. A school mate of the visa applicant, Kong Smey confirmed the genuine nature of the marriage celebrations. She had known the visa applicant since the 1980's and attended the wedding. She was the visa applicant's bridesmaid.

31. The visa applicant confirmed the details of the proposal, of the wedding, the consummation of the marriage and the couple's time together prior to the review applicant's return to Australia.

32. The visa applicant says that her heart aches as a result of their separation, that she almost cried at the airport when her husband was leaving because she felt so sad and did not know how to express her feelings. She also confirmed that the couple remain in touch by telephone and letter. She says she will maintain her love for her husband until the day she dies, a feeling which appears reciprocated by the review applicant who said in his evidence that he feels an obligation to his wife having married her and although it is his intention to live with her in Australia because he doesn't trust the situation in Cambodia, if she can't come he said he will have to go back there and live with her as once a woman is married in Cambodia the whole village knows and it is virtually impossible to re-marry.

33. As to her statement that the marriage was an arranged marriage, the visa applicant told the Tribunal that it was arranged in the sense that her mother was involved in the facilitation of the marriage, but she did not force her to marry. The visa applicant said it was from her own free will that she wanted to marry the review applicant.

34. The visa applicant told me on direct questioning that it was not a strange thing in Cambodian culture for a woman to agree to marry a man on about the first day they meet. She said sometimes it happens, but she believes that the review applicant was her "perfect match". Her evidence was, that in Cambodia marriages are no longer arranged in the sense that the woman has no choice in the matter. She said the society is now a more modern society. That evidence is uncontradicted and I accept it.

35. Under cross-examination, the visa applicant denied that the reason for her marriage was simply to facilitate her migration to Australia. Having regard to her demeanour, as best one can when evidence is given of another culture, by telephone, through an interpreter, I am satisfied that she was a witness telling the truth.

36. Having considered all of the evidence, its weight and its quality, and the lack of any real contradiction, I am well satisfied that the marriage between the review applicant and the visa applicant is a genuine marriage.

37. Given that finding and my earlier finding that the visa applicant's panicked denial of knowledge of her mother's tourist visa application on interview does not constitute bad character or if it does, the situation in which she found herself constitutes a countervailing factor, then the decision of the Tribunal is that she does not fail to pass the character test.

38. The Tribunal's decision is therefore that the decision under review is set aside and that the matter be remitted to the respondent for reconsideration with a direction that the visa application not be refused under s501 of the Act.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: .....................................................................................

Administrative Assistant

Date/s of Hearing 30 October 2002

Date of Decision 20 December 2002

Counsel for the Applicant Mr R Purcell

Solicitor for the Applicant Katsis Purcell Anthony

Counsel for the Respondent Mr A Fell

Solicitor for the Respondent Australian Government Solicitor