Ngo and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 879 (5 September 2003)

Last Updated: 16 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2002/671

GENERAL ADMINISTRATIVE DIVISION	)
	Re	PHUOY RIENG NGO

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr S P Estcourt QC., (Deputy President)

Date 5 September 2003

Place Melbourne

Decision

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

[Sgd S P Estcourt]

Deputy President

CATCHWORDS

Immigration - subclass 104 preferential family visa - whether applicant fails the character test - false and misleading information - compassionate circumstances - long separation -exercise of discretion.

Migration Act 1958 - s501

REASONS FOR DECISION

5 September 2003

Mr S P Estcourt QC., (Deputy President)

1. In this case the Tribunal finds in favour of Mrs Ngo's application to set aside the Minister's decision to refuse a visa to her brother Hoeng Hong Muk and his family to come from Cambodia to Australia to join her.

2. The reason for the decision in favour of Mrs Ngo's application is that although Mr Muk has failed to satisfy the Tribunal that he is of good character, the compassionate circumstances of his long separation from his only surviving sister and the extenuating circumstances surrounding his migration misconduct justify an exercise of the Tribunal's discretion to nonetheless grant a visa in his favour.

3. In Mr Muk's visa application he failed to reveal the fact that he had two deceased sisters and he provided false death certificates for his mother and father.

4. The provision of false and misleading information in connection with a visa application will almost invariably result in a finding by this Tribunal that the person concerned is not of good character within the meaning of s.501 of the Migration Act 1958 ("the Act"), as the observation of truth in dealing with officials in migration matters is of fundamental importance to the effectiveness of Australia's migration system.

5. This case is no exception and although Mr Muk and his sister have explanations for the conduct involved, the Tribunal finds that Mr Muk has not satisfied it that he passes the "character test" under s501 of the Act in view of this past general conduct on his part.

6. That Mr Muk does not pass the "character test" does not mean that he cannot obtain a visa as s501 of the Act permits the Tribunal to still authorise that one be granted if, having regard to all of the circumstances of the case, including a number of "primary" and "other" considerations set out in Ministerial Direction No.21, the Tribunal is satisfied that it ought to exercise its discretion in his favour.

7. In this case there are two considerations under Ministerial Direction No.21 which stand out among all of the matters to be considered. The first is the seriousness and nature of the conduct and the second is the purpose and intended duration of the entry into Australia, including any significant compassionate circumstances.

8. Mrs Ngo was born in Cambodia on 20 January 1950. Her father died when she was 5. Her two older sisters were executed during the Pol Pot Regime. Her mother died in about 1978. Her only remaining relative is Mr Muk, one year her junior, who she last saw in Cambodia in 1977.

9. During the Pol Pot regime Mrs Ngo and Mr Muk were sent to different places of forced labour and between 1977 and 1993, she lost contact with him. Shortly before she found out he was still alive, she discovered her two sisters had been executed. All of this occurred some years after Mrs Ngo had come to Australia to live via a refugee camp in Thailand.

10. After Mrs Ngo came to Australia, she became naturalised and during that process, she advised an Australian citizenship official that while she was in the refugee camp in Thailand, she had altered her birth date from 1950 to 1957 because she had been told that it was easier to find a job when sent to a foreign country if she was thought to be younger. She was told by the Australian official who interviewed her that he could not accept what she said was her correct date of birth, as she didn't have anything to prove it.

11. After Mrs Ngo completed the documentation for her brother's application for a preferential family visa to come to Australia, and had arranged for him to obtain and lodge death certificates for their parents, she realised that her father's death certificate would suggest that he had died two years before she was supposedly born. As a result, between the two of them, Mrs Ngo and Mr Muk provided a second inconsistent set of death certificates for both parents in an attempt to bring the documentation supporting the visa application into line with Mrs Ngo's false age.

12. As to the failure to list their deceased sisters in the visa application, Mrs Ngo, who actually completed the documentation, gave unchallenged and uncontradicted evidence that it was, amongst other things, because she had blocked the memory of their deaths out of her mind and because it was too painful for her to think about them and about how they had died.

13. In the Tribunal's view, whilst Mr Muk's part in this conduct would constitute a serious crime against the Migration Act 1958, and whilst such an offence is considered to be very serious by the Australian Government, the circumstances set out above as surrounding the provision of the false and misleading information are extenuating and as such the seriousness and nature of the conduct falls at the lower end of the scale of such conduct.

14. Further, on a review of all matters including the considerations listed in Ministerial Direction No.21, the clear compassionate circumstances surrounding this intended permanent visa, to enable reunion of two sole surviving family members separated in terrible circumstances over 25 years ago, are most significant in the Tribunal's judgment.

15. After careful weighing of all of the considerations in the case, the Tribunal finds that the extenuating circumstances surrounding the migration misconduct and the significant compassionate circumstances surrounding the purpose and intended duration of the visa, militate in favour of an exercise of discretion to grant the visa to Mr Muk notwithstanding his failure to pass the "character test".

16. The formal order of the Tribunal is that the decision of the respondent's delegate dated 23 May 2002 refusing, pursuant to s501 of the Migration Act 1958 the grant of a subclass 104 preferential family visa to Hoeng Hong Muk is set aside and the matter is remitted to the respondent with the direction that the visa not be refused under s501 of the Act.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: (K L Miller Administrative Assistant)

Date/s of Hearing 9 July 2003

Date of Decision 5 September 2003

Counsel for the Applicant Mr Greg Hughan

Solicitor for the Applicant Fitzroy Legal Service

Counsel for the Respondent Mr Michael Brereton

Solicitor for the Respondent Australian Government Solicitor