Decision The decision under review is affirmed.

Immigration - application for spouse visa - character test - discretion - false and misleading information in earlier tourist visa application - altered document used in spouse application - failure to pass character test - determine discretion not exercised in favour of applicant.

Migration Act 1958 - s.501

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148

Renata and Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157

Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Baker and Department of Immigration and Ethnic Affairs [1995] AATA 13; (1995) 37 ALD 744

Ngor and Minister for Immigration Multicultural Affairs (2000) AATA 353

Ivanayeraka and Minister for Immigration and Multicultural Affairs (2000) AATA 489

Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA 935.

5 June 2001 The Hon. C. R. Wright Q.C., (Deputy President)

1. Sok Lieng Chau ("Chau") is the husband and sponsor of Somnang Rin ("Somnang") who applied for a Sub-Class 309 (spouse) visa to enter Australia which was refused on 8 May 2000. The Minister's delegate made this decision on the basis that the visa applicant did not pass the "character test" within the meaning of s.501 of the Migration Act 1958 ("the Act"), having regard to her past and general conduct.

2. Somnang had previously applied for a Class TR/676 Tourist (short stay) visa on 12 March 1997. This application was refused on the ground that the decision-maker was not satisfied that a genuine visit as a short term tourist was intended. In the application for the Tourist Visa, Somnang had stated her date of birth to be 1 January 1973, her marital status to be widowed with one 4-year-old child who would remain with her parents in Cambodia while she visited Australia, and she had also given false family details.

3. The visa application was also accompanied by bogus documents viz. a personal identification card showing the false birth date and a family identity book repeating the false birth date and information about the fictitious son. These falsehoods were at the heart of the Minister's delegate's reasons for concluding that Somnang was not of good character when she applied for the spouse visa which is the subject matter of the present review proceedings.

4. In fact Somnang was born on 8 December 1977. In 1997 she was unmarried and had no children. She was the eldest daughter of a farming family which lived, and still lives, in Siem Reap Province in Cambodia. Her father works as a taxi driver and her mother is involved in home duties. She has six younger siblings.

5. According to Somnang and her father Rin Rou (both of whom gave evidence before me) he formed the opinion that she should visit her uncle Mark Tham, an airline employee, who has lived in Australia for many years. Rin Rou claimed that he thought it would be "good experience for her to go and live in Australia for a short while", and in her visa application she stated that she wished to "visit uncle Mark Tham and to see/visit many different places of interest in Australia". No other purposes were claimed for the proposed visit, but on the basis of the whole of the evidence I am left in little doubt that the basic purpose of the visit was to enable Somnang to take up paid employment, probably with Mark Tham's wife, in Melbourne. During his evidence Mark Tham said that his wife was self-employed "doing sewing, making clothes" in 1997. She now works in a factory making curtains.

6. When interviewed in Phnom Penn on 28 April 2000 at 10.00 am. by an Australian immigration official Somnang was cautioned that she should not give answers to questions "which she thought the interviewer may want to hear". An interpreter was present and involved throughout the interview and there is no basis for concluding that the interview was other than proper and fair in all respects.

7. The following questions were asked of Somnang, during the interview:

"72. Why did you apply for a visitor visa in 1997 under a false identity, different date of date, which was supported by bogus identity documents?

I asked someone to organise the application for me.

SAM Roth(M) 28 yrs, he used to live at Siem Reap.

75. How much did you pay him to arrange this visitor application?

That application is sponsored by my uncle who sent it to me and to ask someone to copy it for me.

My uncle, THAM Moeuk asked to obtain documents and then for the person here (SAM Roth) to follow my uncles instructions.

77. Why did the documents you obtained (family book & ID) have wrong date of birth?

I asked them for documents but they mistook my date of birth and put 1973.

78. How do you explain the family book which is clearly false in which you have declared yourself widowed with one child?

My friend told me if the application was to be successful I had to put myself as widowed with a child.

79. So you were aware you were obtaining false documents to support the bogus claims in the application?

80. How can you not be aware that these documents are clearly fraudulent?

81. How can you deny that you were not aware that your documents were clearly false, especially your family book which is clearly false?

82. If this visitor visa application has been successful and visa granted what were you planning to do in Australia?

I will go to work in Australia in sewing factory for 3 months.

83. Your Cambodian ID card you have submitted in support of this application has been clearly altered. Why have you done this?

84. Who has changed the details on this ID card? The same card was submitted with your earlier visitor visa application in 1997 but all the details have been changed between then and when you submitted it in support of your current application?

85. Why do you not know when this is your ID card? Who has had this card between 1997 and now?

86. Then who has changed the details on the card?

8. During her evidence in the present proceedings both the visa applicant and her father claimed that she had no knowledge of the falsity of the material in the Tourist Visa application and that, behaving as a good and dutiful Camdodian girl should she simply signed all relevant documents as directed by her father without question, protest or demur.

9. At pages 1 and 2 of her statutory declaration (Exhibit A1) Somnang said this:

"5. Prior to my spouse visa application 5 January 1998, an application for a Sub-Class 676 short stay tourist visa was made on 12 March 1997 in the name of RIN Samnang to the Australian Embassy in Phnom Penh. This was rejected on the same day. My only active participation in this visa application was to sign the application forms.

My father suggested to me that I make the application. He told me that I should go and visit Australia and stay for a while. I did not know what other details were involved in the visa and therefore did not know what to ask. I am only aware that if I am invited to travel there I should obey my relatives and be dutiful to the law. I can read, write and speak the Cambodian language.

The person named as the helper in the preparation of the Sub-class 676 short stay tourist visa is Sam ROTH. However, he was not the only one. It was my father who had the idea that I should visit my uncle Mark Tham in Australia. Like many other Cambodian people, he went to the Australian Embassy in Phnom Penh to seek more information. When he returned home, he had been told how to fill out the application from by Sam ROTH and others like Sam ROTH.

My father made the suggestion that I was to travel to Australia early in 1997.

After he made the suggestion, he went to the Australian Embassy in Phnom Penh to find out more information on how to obtain a vis in Australia.

The next I heard about the application was when my father returned a few days later with all the completed forms. The forms had been completed by Sam ROTH and others like him. I was not told what the meaning of the forms were. I thought to ask within the discretion of a dutiful daughter to ask but the discretion was no narrow I could not ask. I also did not know what to ask.

At no time did anyone translate the full meaning of all the answers and questions on the application form or documents into Cambodian for me. I did receive an impression that it was not truthful but I was not certain as to the nature of the untruth. I was also reluctant to ask because my father did not seem eager to answer my questions. He just told me to sign.

The only substantive thing I did to help the preparation and lodgment of the application as to sign the forms according to my father's instructions."

Her father Rin Rou said this in his statutory declaration (Exhibit A2):

"5. The way in which the tourist application was prepared is as follows:

I corresponded with Mark THAM, RIN Somnang's uncle in Australia. We both decided that it would be a good experience for her to go and live in Australia for a short while.

I went down to the Australian Embassy in Phnom Penh to ask about a tourist visa.

The Embassy compound was crowded with people. I could not tell who was an authorised official. Nor could I tell what was the correct way to apply for a visa.

Every person I spoke to said that the proper and only way to apply for a tourist visa for young girls is to pretend that the girl is already married and settled in Cambodia.

I decided to get help and paid Sam ROTH to help me get the form and fill them out.

After I took the documents home I told RIN Somnang to sign them.

RIN Somnang asked me what they were for but I told her not to worry and just to sign them.

RIN Somnang is a good girl. She did not ask too many questions. She just signed them. I took them back to the Embassy together with Somnang with the aid of Sam Roth direction.

Now I am sorry that has happened. She had no part in the falsity of the application. I believe that had she prepared it of her own free will, her natural good nature would not have allowed her to sign the forms. I ask for clemency from the Australian government authorities.

Sam ROTH misled us unto believing that what we were doing was correct and acceptable. He misled us into believing every application had false details and therefore only false applications were acceptable. I believed Sam ROTH because he claim to know English and we have no one else to speak to.

RIN Somnang did not take any active part in this application. Even though she asked what it meant, she was only told to sign and not ask too many questions. She may have been aware that the application was not entirely true but I know that as a young girl dependent on her parents, she felt she had no choice.

RIN Somnang is a young sweet girl. She would not deliberately set out to hurt anyone. She knows the meaning of truth and is willing to observe and learn new practices in a new society. I know that she has the capacity to learn because CHAU Sok Lieng has already taught her much to prepare her for new life. All our family hope this young girl can be given a chance to be with her husband."

10. Somnang claimed in oral evidence that she did not meet or speak with Sam Roth. Sam Roth filed no statutory declaration or affidavit and did not give oral evidence. He remains a shadowy and elusive figure whose status, whereabouts and role in relevant activities remains unclear. However, his existence is not the point at issue. The central question is whether or not Somnang was complicit in the deceitful information provided to the Australian Embassy in Phnom Penh. It was freely conceded that the false statements as to the visa applicant's age, marital and maternal status and her family details were devised as a means of convincing Australian immigration officials that Somnang had strong family roots and obligations in Cambodia which would ensure her return to that country when the visa expired.

11. In cross-examination Rin Rou conceded that his daughter was aware that the visa application "said she had a son at the time the application was made". It is also significant to my mind that Somnang concedes (para. 12 of her declaration). "I did receive an impression that it" (the application) "was not truthful ...". She also suggests (inconsistently perhaps with the "unquestioning dutiful daughter" proposition). "I was also reluctant to ask because my father did not seem eager to answer my questions. He just told me to sign. Rin Rou for his part says "She" (Somnang) "may have been aware that the application was not entirely true".

12. I am in little doubt that Somnang was well aware that the application contained significant falsehoods and that she signed the same willingly as part of the plan to gain entry to Australia.

13. That such conduct can amount to bad character for the purposes of the Migration Act 1958 is beyond question.

14. See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84; Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148; Renata and Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157; Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780; Baker and Department of Immigration and Ethnic Affairs [1995] AATA 13; (1995) 37 ALD 744; Ngor and Minister for Immigration Multicultural Affairs (2000) AATA 353; Ivanayeraka and Minister for Immigration and Multicultural Affairs (2000) AATA 489; Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA 935.

15. In November 1997, Chau visited Cambodia during his school holidays. He met Somnang during his stay of several weeks and the two of them formed an affectionate relationship. Chau was 19 years old at the time. During the following year, after his return to Australia, he decided to ask her parents for permission to marry. Having done so he secured their consent and on 28 December 1988 Somnang and Chau were married according to Khmer traditions and ceremonies in Cambodia. The nature and circumstances of their developing relationship and subsequent marriage was explored in some detail in the evidence, but I have no present reason to doubt that it was a completely genuine marriage. As yet there are no children of the marriage.

16. Somnang and Chau were also questioned about his knowledge of her fraudulent and unsuccessful tourist visa application before the marriage. They both denied that he had knowledge of the matter. However he subsequently prepared the spouse visa application albeit with assistance from Leang Lay, a relative of one of Chau's friends in Australia and that application was supported by the identity card used for the purposes of the tourist visa application which had clearly been altered since that time as well as an apparently new family book which contained different information from that which was put forward in support of the tourist visa application.

17. At a further interview between Somnang and the previously mentioned immigration officer on 28 April 2000 at 3.30 pm, she was told that her spouse visa application may be refused on character grounds. A number of allegations were put to her, including the following:

"On 05 January 1999 you lodged this application for a Spouse (provisional) visa. In this application you have declared your identity as RIN Somnang born 08/12/77, you have never married and you do not have any children. You have also declared that you have seven siblings rather than four as declared in your visitor application . In support of your claimed identity you have submitted the same Cambodian Identity card which clearly exhibits signs of significant bio data alteration and photo substitution. This ID card indicates it was issued 26/8/86 when you were 8 years old, although these ID's are not issued until Cambodian nationals have reached the age of 18 years, and the photo included is identical to the photos submitted with your application. It is clear that the photo included in the ID card is not that of an eight or even an eleven years old child (if born in 1977). The family registration book (ban Krue-saa) is also completely different to the family book submitted with your earlier visitor visa application. This latest family book's date of issue is 17/5/94 but the actual document is in almost pristine condition which is highly unusual for a six year old document. You have also submitted a birth certificate that was issued 15/12/98. As you are aware both of these documents are of an unreliable nature and prone to false or misleading information and are often issued by corrupt officials."

She was then asked a series of questions. Question 4 and the answer thereto are of some interest.

"What was your reason for lodging these applications under false identities, with bogus claims and false statements and false declarations?

Because at the time I was told if I wanted to get a visa quicker I must list as a widow and before lodging this application I was told the old ID card should be alright and no need for me to lodge a new one."

18. The respondent suggests that the present application is tainted by being accompanied with documents whose authenticity is suspect or which have been tampered with. When and by whom the tampering occurred is difficult to say, but I am satisfied that the visa applicant, Somnang, was aware that these documents were being used to further her claim for entry to Australia. Whether or not Chau was aware of their falsity may be debatable, but is not directly relevant in my opinion. However, I find that he was aware of the earlier tourist visa application, its fate, and the fact that it had been supported by bogus material before the spouse visa application was lodged on 5 January 1999.

19. I agree with the submission of Mr. Knowles that Somnang's evidence was vague and unreliable in important respects. On the basis of her involvement with both visa applications I am of the opinion that she is not of good character within the meaning of the Act.

20. The question thus arises whether or not my discretion should be exercised to direct the Minister to assess Somnang's application regardless of the adverse character assessment. In this regard the Minister's Direction No. 17 made under s.499 of the Act is to be considered. This Direction is binding on decision-makers, but the validity of certain aspects of the Direction have recently been questioned by Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (4 May 2001) FCA 514. Without in any way questioning His Honour's observations as to the Minister's Directions regarding the weight to be accorded to primary and other considerations, I propose to exercise my discretion in the present matter on the basis that it is unfettered and that I may balance all considerations, according them such weight as I believe them to have, in reaching my ultimate decision.

21. My views can be shortly stated. Somnang's conduct in using false material and giving false information in respect of both applications was highly reprehensible. Her claim to have been acting "morally" according to Cambodian perceptions by following her father's directions is quite unpersuasive. In my opinion the seriousness of her conduct is to be assessed from the standpoint of the Australian community's perception of her misconduct, but in any event, she does not claim she was coerced by her father and she admits that if (as I have found) she voluntarily participated in such conduct it would be morally wrong in Cambodia as well as Australia (see para.14 of Exhibit A1). To make false and misleading statements is a serious offence under the Act and, in an appropriate case, can be punished by imprisonment.

22. The expectation of the Australian community is, I am sure, that such conduct should not be rewarded by the grant of a visa. The question of general deterrence is an important one. Arguments were contained in the statutory declarations of several witnesses and were put to the Tribunal by Mr. Wraight on behalf of the applicant that the Cambodian community in which Somnang lives would not understand if her visa application were to be refused. This view was supported by Mr. Lew Hess, Senior Lecturer at RMIT and a consultant social worker. Mr. Hess suggested that Somnang's failure to secure a visa would be interpreted as a severe "loss of face" which "in the Cambodian context embodies acute familial and community shame ... indicative of the lack of goodness in Rin Somnang and her family rather than as a result of an Embassy determination." He also said that Somnang's "continued presence in Cambodia will be in all probability be perceived as personal inadequacy on her part in meeting her husband's requirements and essentially a rejection of her suitability as a wife". Mr. Hess has never been to Cambodia, but I accept that he has an academically acquired understanding of that country's culture and traditions.

23. Evidence of this kind has been accepted and acted upon in previous applications before the Tribunal (see Ly and Minister for Immigration and Multicultural Affairs AATA339 (28 April 2000)), but in my opinion it will rarely be determinative of the appropriate outcome. I do not accept the blanket proposition put forward that the Cambodian community is incapable of understanding an outcome such as refusal of a visa application.

24. Mr. Hess conceded that a refusal of the visa application would "possibly" send a deterrent message back to Cambodia. Frankly, I have little doubt that it will do exactly that.

25. The applicant is the husband of Somnang. He is actively pursuing an application to ensure that they are re-united in Australia. How that fact could be overlooked in an assessment of whether or not he has rejected his wife is beyond me. Evidence was given that applications containing false material are commonplace in Cambodia and that corrupt officials and unqualified migration "agents" compound the problem. In my opinion the only effective way of announcing loudly and clearly to prospective migrants from that country, that they must tell the truth in any application which they make, is by refusing visas to those who make use of fraudulent documents and untrue representations to gain entry to Australia. I do not accept the proposition that such outcomes will not have a deterrent effect. Indeed I am quite confident that consistency in this approach, except in rare cases of severe personal hardship, will drive the message home. I do not consider there is excessive personal hardship in this case. Chau can go and live with his wife in Cambodia if he wishes. He has lived in Australia for 7 years, but he has not yet set upon a defined career path in this country. He speaks Cambodian and he agreed in cross-examination that he would "contemplate" living with his wife in Cambodia if the application is unsuccessful. There are no children of the marriage. There is no suggestion that Somnang is pregnant. The welfare of children of the marriage obviously is not an issue in these proceedings (cf. Ngor and Minister for Immigration and Multicultural Affairs (2000) AATA 353). I have read counsel's oral and written submissions and I have read the decisions which they referred me to.

26. Having considered the evidence (including the exhibits) I have concluded that my discretion should not be exercised in Somnang's favour. In my opinion the decision under review should be affirmed and I so order.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C. R. Wright Q.C., (Deputy President)

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