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[2002] AATA 1119
respondent. The Tribunal affirmed the delegate's decision refusing the subclass 309 provisional spouse visa; the discretionary power under Direction 21 was not exercised in the visa applicant's favour (para...
The Administrative Appeals Tribunal upheld the Minister's delegate's refusal of a provisional spouse visa because the sponsored spouse used multiple identities, inconsistent dates of birth and produced documents that the Tribunal found to be false. She gave false answers at interviews and continued with untruths at the AAT hearing. The Tribunal found breaches of s 234 of the Migration Act and, applying Ministerial Direction No 21, decided not to exercise its discretion to grant a visa due to seriousness, risk of repetition and need for deterrence. The sponsor's marriage to the applicant was accepted as genuine, but that did not outweigh the adverse findings. The refusal was affirmed.
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The Administrative Appeals Tribunal (Deputy President J Block) reviewed a delegate's refusal (9 November 2001) of a subclass 309 provisional spouse visa lodged by a Cambodian national and sponsored by an Australian citizen (the sponsor). The spouse is variously identified in the file as Men Srey Mom / Srey Mom Men and as Mackara Uy / Uy Mackara. The sponsor is referred to as Yean Uch (also Chien Uch in T documents). The key factual issue was the spouse's identity and character, and whether she had deliberately used false names, dates of birth and fabricated documents to obtain a visa.
No linked legislation citations have been extracted yet.
The Tribunal had before it two prior visitor visa applications (1995 and 2000), two embassy interview records (9 October 2001 and 6 November 2001), contemporaneous documents including passports and a birth certificate, and oral evidence from the sponsor and telephone evidence from the visa applicant (paras 2–6, 3(c)-(d)). The 1995 visitor visa application recorded the person as 'Mackara' born in 1983 and accompanied her mother to Australia. A 2000 visitor application again used 'Mackara' with a different date of birth (23 November 1983) and was refused on 18 August 2000 (paras 3(a), 7(b), 9(b)). The spouse visa application of January 2001 was made as 'Men Srey Mom' with a date of birth of 8 January 1982 and supporting documents including a birth certificate and passport claiming that identity (paras 3(a), 9(c)).
During embassy interviews the visa applicant gave inconsistent accounts about names, dates, adoptive parents and reasons for the changes. At the second interview an officer summarised the factors suggesting the applicant had provided false and misleading information and bogus documents and orally concluded that she was not of good character (quoted in the record reproduced at para 3(d)). At hearing the Tribunal concluded that the birth certificate in the file could not be genuine (impossible date given sibling dates), that the spouse had lied at interviews and in evidence, that there had been an elaborate "charade" following the 2000 visa refusal, and that material witnesses (natural and alleged adoptive parents) and original documents were not produced to corroborate the applicant's account (paras 14–16). The Tribunal accepted the marriage was genuine (paras 15–16), but concluded the falsehoods, fabricated documents and perjury meant the visa applicant did not pass the character test under s 234 and that, applying Ministerial Direction No 21, discretion should not be exercised in her favour (paras 17–20). The delegate’s refusal was affirmed (para 20).
Two legal sequences determined the result.
First, factual findings: the Tribunal found on the balance of probabilities that multiple falsehoods and fabricated documents had been used to support the spouse visa application. Central findings include that the putative birth certificate was false (para 16(c)), that the visa applicant had used at least two identities and two passports in a short period (paras 9(b), 16(e)), that oral testimony was “largely fictional” and inconsistent (paras 13, 16(a)), and that material witnesses and original documents (natural birth certificate) were not produced despite their likely availability (paras 5(i), 14(a)). These factual findings produced the conclusion that s 234 had been breached: “There have, on the balance of probabilities, been numerous breaches of s 234” (para 17(a)).
Second, normative exercise under Direction 21: Direction 21 (applied by the Tribunal) requires consideration of primary considerations, protection of the Australian community; expectations of the Australian community; and in some cases children’s best interests (para 18). The Tribunal assessed seriousness of conduct (fraudulent identities and documents), risk of repetition (heightened by false evidence at hearing), and the need for general deterrence (paras 19(c)-(e), 19(h)-(i)). While acknowledging hardship to the sponsor and spouse, the Tribunal concluded those did not outweigh the primary considerations and declined to exercise discretion favourably (paras 19(j)-(k), 20). The officer’s contemporaneous character conclusion in the interview notes and prior AAT authority emphasising the importance of truth in migration matters (Re Lachmaiya) were influential (paras 3(d), 19(e)).
Two procedural and evidential points reinforced the result. The absence of testimony from the natural and adoptive parents, who were central to explaining adoption, name changes and documents, led the Tribunal to draw an adverse inference (paras 5(i), 14(a)). Also the political and practical observation that false Cambodian documents are commonly procured was noted, though the Tribunal did not treat that as excusing fabrication; rather it informed the assessment of document authenticity (para 5(h)).
Before: The Tribunal and earlier authorities had long-held the principle that honesty in immigration dealings is fundamental. Re Lachmaiya [1994] AATA 27 (cited at para 19(e)) emphasised that repeated lies and use of bogus documents undermine good character assessments and justify refusal. The jurisprudence treated falsehoods seriously whether appearing in protection claims or other visa categories.
This decision applies those settled principles to a spouse visa factual matrix where identity and documentary falsity were central. The Tribunal distinguished Ly [2000] AATA 339 (para 19(e)): Ly was factually different because that case included a child’s interest and an admission at the evidence stage, whereas here the visa applicant repeatedly lied and persisted with fabricated documents. The decision thus reinforces an existing line: false identity and bogus documents, especially when sustained at hearing, are strongly determinative of character and discretionary refusal.
After: The practical take-away is that even where a marriage is genuine and hardship exists, the presence of fabricated identity documents and persistent untruths will normally preclude a favourable exercise of discretion under Direction 21 because of community protection, expectations and deterrence considerations.
Para 16(c): "The birth certificate before me is false..."
Para 17(a): "There have, on the balance of probabilities, been numerous breaches of s 234..."
Para 19(c)-(e): Application of Direction 21 factors, seriousness, risk of repeat, deterrence.
Para 14(a): "The fact that none of [the parents] did so is perhaps understandable, but ... gives rise to an adverse inference."
Para 19(i): "It is necessary in my view to send a strong message that conduct of this nature will not be tolerated."
When these combined features appear, the Tribunal is likely to find breaches of s 234 and refuse to exercise discretion under Direction 21.
This decision sits in an established line within the AAT and migration jurisprudence that treats dishonesty and fabricated documents as weighty reasons to refuse visas. The Tribunal explicitly relied on Re Lachmaiya as an approved statement (para 19(e)) and distinguished Ly (2000) on facts (para 19(e)). The decision underlines the AAT’s approach: even where personal hardship exists, the public interest, risk, and deterrence considerations generally prevail where dishonesty is pervasive and corroboration is absent. Subsequent tribunals and courts routinely cite such reasoning when assessing character breaches and the exercise of discretion under Direction 21.
Practitioners should expect that material omissions (failure to call key witnesses or produce primary documents) and persistent inconsistencies will be treated unfavourably, and that genuineness of relationship alone is unlikely to outweigh serious fraud.
Degree of Sponsor Knowledge and Innocence: The Tribunal accepted the sponsor's evidence of relative innocence due to youth and inexperience (para 16(i)). The precise evidential threshold for concluding sponsor innocence versus willful participation remains case-specific. How much suspicion or negligence by a sponsor ought to influence discretion is an open factual question in each case.
Weight to be attached to context of document fabrication in countries with endemic document fraud: The Tribunal noted the practical reality of false Cambodian documents (para 5(h)), but treated fabrication as still decisive. The appropriate evidential approach where documents are suspect but possibly genuine could require more granular guidance: what corroborative threshold offsets inherent country of origin risks?
Interaction with humanitarian or family hardship grounds: The Tribunal acknowledged hardship (para 19(j)) but found it outweighed. Future cases will test boundaries where severe humanitarian hardship or compelling child-related considerations are present; the degree of hardship that can outweigh grave dishonesty is not exhaustively defined.
Reliance on adverse inference from non-production: The decision drew an adverse inference from failure to call parents (paras 5(i), 14(a)). The circumstances in which such an inference is justified, especially where family members may face real obstacles to giving evidence, remain contextual. Practitioners should ensure attempts to obtain corroboration are demonstrable.
Remedies and scope of review: The decision is an AAT affirmation of a delegate. Questions on whether differing fact-finding or weight might attract judicial review remain dependent on jurisdictional error rather than merits. The standard of review for such fact-heavy, credibility-based decisions persists as an area where litigation may arise, though success is uncommon absent legal error.
Practical takeaway for practitioners: where identity or documentary issues arise, assemble primary evidence and witness testimony (including from family who can explain adoptions or name changes), address inconsistencies transparently in submissions, and be aware that entrenched falsehoods at interview and hearing will be decisive against a discretionary grant under Direction 21 (see paras 14–19).
DECISION AND REASONS FOR DECISION [2002] AATA 1119
And Minister For Immigration And Multicultural And Indigenous Affairs
Decision The decision under review is affirmed.
IMMIGRATION - provisional spouse visa - character test - false and misleading statements and conduct - not of good character - whether discretion should be exercised in Applicant's favour - primary considerations - protection of Australian community - seriousness and nature of conduct - risk of recidivism - general deterrence - expectations of Australian community - other considerations
Ministerial Direction No 21 - Visa Refusal and Cancellation under Section 501 of the Migration Act 1958
Chau and Minister Immigration and Multicultural Affairs [2001] AATA 485
Ly v Minister for Immigration and Multicultural Affairs [2000] AATA 339
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148
Cheung Yok Kouang and Minister for Immigration, Multicultural and Indigenous Affairs [2000] AATA 1010
1. The decision under review is the refusal dated 9 November 2001, by the Respondent's delegate, of an application for a subclass 309 Provisional Spouse Visa by the Applicant's wife; that application was sponsored by the Applicant. The name of the Applicant's wife (referred to as the "Visa Applicant") is a matter of some conjecture. The refusal was addressed to Men Srey Mom; she is referred to as Srey Mom Men in clause 5 of exhibit A1; however her name when she was born was Mackara Uy or Uy Mackara, and this latter name was used in two applications to visit Australia. All of this will be referred to in more detail later in these reasons. In the interests of brevity, the term "Mom" refers to Men Srey Mom or Srey Mom Men; similarly "Mackara" refers to Mackara Uy or Uy Mackara. In the same context, the name of the Applicant is referred to in the T documents as Chien Uch; however in exhibit A1 his name is recorded as Yean Uch but these two names refer to the same person. Other Cambodian names referred to in these reasons sometimes appear in different form in the T documents.
2. (a) The Applicant was represented by Mr Kerry Murphy of Craddock Murray Neumann, Solicitors while Mr Murray Allatt of the Australian Government Solicitor appeared for the Respondent.
(b) The Tribunal had before it the T documents together with exhibits as follows:
A1 Statutory Declaration by the Applicant dated 16 July 2002
A2 Western-Chinese calender converter for the year 1982, which discloses that in Chinese terms that was the year of the chicken
A3 Western-Chinese calender converter for the year 1983, which discloses that in Chinese terms that year was the year of the dog
3. The facts in this matter proved in the result to be difficult to elicit; why this was so will be dealt with in more detail later in these reasons. It is, in my view, particularly desirable, in order to set the scene, and to furnish the background, to commence by reproducing some of the documents (or extracts from them) which were before the Tribunal.
(a) In respect of the Respondent's Statement of Facts and Contentions dated 19 September 2002, I include only clause 2, which contains a useful chronology, as follows:
"2. In this statement references to the section 37 documents will be signified by the word "Folio" followed by the corresponding folio number. The Department of Immigration and Multicultural and Indigenous Affairs will be referred to as "DIMIA".
15 October 1981 Review Applicant born in Thailand [Folio117].
8 January 1982 Visa Applicant allegedly born in Cambodia [Folio 115].
8 January 1983 Date of birth given by Makara Uy on tourist visa application lodged in 1995 in Cambodia under different name [Folio 51]
23 November 1983 Date of birth given by Makara Uy on tourist visa application lodged in 2000 in Cambodia under a different name [Folio 81]
18 March 1988 Review applicant arrived in Australia [Folio 117]
16 December 1991 Review applicant is granted Australian citizenship [Folio 117]
16 August 1995 Visa applicant applied for and was granted a tourist visa under the name Makara Uy with a date of birth given as 8 January 1983 [Folio 115]
5 September 1995 Visa applicant arrived in Australia travelling under the identity of Makara Uy. [Folio 77 , 89 and 189]
16 March 1996 Visa applicant departs Australia under the identity of Makara Uy [Folio 189]
25 July 2000 Visa applicant lodges further tourist visa application under the identity of Makara Uy which is refused on 18 August 2000. [Folio 81]
18 August 2000 Reasons for refusal given [Folio 94 - 95]
29 December 2000 Review applicant and visa applicant marry [Folio 115]
23 January 2001 Review applicant and visa applicant apply for spouse visa [Folio 113]
9 October 2001 Visa applicant interviewed by embassy staff in Phnom Penn [Folio 183]
6 November 2001 Visa applicant interviewed second time. [Folio 205]
6 November 2001" Decision made rejecting application. [Folio 12 ]
(b) As a matter of balance, only paragraph A of the Applicant's Statement of Facts and Contentions dated 1 October 2002 is included, as follows:
1. The visa applicant was granted a tourist visa by the Australian Embassy in Cambodia on 16 August 1995 to Australia. The visa was granted in the name of Uy Mackara.
2. On 5 September 1995 the visa applicant arrived in Australia on the visitor visa and departed Australia on 16 March 1996.
3. On 25 July 2000 the visa applicant lodged a further visitor visa application in Cambodia. This was refused on 18 August 2000.
4. On 23 January 2001 the visa applicant lodged a spouse visa subclass 309 in the name of Srey Mom MEN.
5. On 9 November 2001 the subclass 309 visa was refused by the delegate of the respondent.
6. On 19 December 2001 this application was lodged with the AAT."
(c) On 9 October 2001 the Visa Applicant was interviewed by the Australian Embassy in Phnom Penh. The record of interview ("first interview record") proved to be of considerable importance. It appears at T page 183 to T page 186 (inclusive) and reads as follows:
(i) The purpose of this interview is to ask you some questions about your migration application, particularly about your relationship to your sponsor. Do you understand?
(ii) It is important that you do not make up answers that you may think I want to hear. Just answer the questions fully and truthfully and if you do not know something please say so, do not make up an answer. If you do not understand a question tell me and I will explain it to you. Do you understand?
(iii) Have you read the information sheet on character requirement (Khmer version) regarding provision of false or misleading information or deceiving or misleading or presenting a forged document to an Australian Government official. It is important that you are aware that the provision of false or incorrect information, including at this interview, may result in your application being refused. Do you fully understand this? Yes. Confirmed signature at back of application.
1. What is your full name and date of birth?
A. My name is MEN Srey Mom and I was born on 8 January 1982 in Phnom Penh.
2. Have you ever been known by or used any other name, including knick name, call name or alias?
3. Have you ever applied for a visa at this Embassy previously?
4. Have you ever applied for a visa for Australia under a different identity?
6. Do you have any children from your previous marriage or any other relationship?
7. Please provide the full details of your entire family, including relationship, sex, age and martial status, including any missing or deceased siblings?
8. What is your current residential address (where you live)?
A. I live at 30A, Street 376, Group 43, Village 4 Sangkat Boeung Keng Kang III, Khan Chamcar Mon Phnom Penh. Phone number? It is 012 920 354. [Do you use any other numbers?] Yes, I also use 012 929 344.
9. Who else resides/lives with you at this address?
10. How long have you lived at this address?
11. What was your previous address and how long did you live there?
A. I cannot remember where I lived. [What is the street number?] I cannot remember it. [How long did you live there for?] For 5 years. [And you cannot remember the street number?] I forgot.
12. What work do you do and who is your employer?
13. Please advise details of any previous employment?
14. What is your sponsor's full name & date of birth?
15. What is your sponsor's current marital status?
16. Has your sponsor been married previously? Please provide full details.
17. Does your sponsor have any dependent children? Please provide full details?
18. Please give the full details of your sponsor's family, including relationship, sex, age and marital status?
19. What is your sponsor's current address and telephone number?
A. He lives at 10 Underwood Street, MINTO NSW 2566. His phone number 9603 2071.
20. Who else resides/lives with your sponsor at this address?
A. He lives with his immediate family members. No one else.
21. How long has your sponsor lived at this address? Where did your sponsor live before this?
22. What work does your sponsor do and who is their employer?
A. I know that he's working, but I am not sure what it is he does.
24. What are your sponsor's hobbies and interests, and what does your sponsor do in their spare time?
A. He likes visiting his friends and playing snooker.
25. How and when did your sponsor migrate to Australia?
A. Since he was young. They went from a border camp.
26. Where is your sponsor's family from in Cambodia?
27. How did you come to know your sponsor? Who introduced you? What is this persons relationship/how do they know both of you?
28. When and where did you first physically meet?
A. I met him in 1995 when he came and stayed in my house. I then met him again when he came again on 26 December 2000.
29. When did you become engaged (date, full ceremony details, and after celebrations)?
A. We did not have an engagement ceremony. [Why not?] We had it on the same day as our wedding.
Examine the photos. Confirm identifies at folio 44, 47 & 48! Identify of PA in all pictures.
30. When and where was your traditional wedding ceremony held?
31. Where was the wedding reception held and how many people attended?
A. It was held at the Popha Tip II Restaurant. There were 250 guests.
32. How long did your sponsor stay after your wedding and when did your sponsor return to Australia?
33. Has your sponsor visited you since your wedding?
34. Where did your sponsor stay during this visit?
35. Under Section 57 of the Migration Act, we are required to present adverse information to you and invite you to comment.
On 30 August 2001 this office received community information that your true identity is UY Mackara. Would you like to comment on the matter?
37. I have before me two earlier applications made by UY Mackara made in August 1995 and again in July 2000. I showed PA both applications. Do you recognise this person? Please note the similarities: folios 47, 48 & 44 for direct chin and facial comparison. Would you like to explain this?
A. It must be a similar person. [At Question 8 you gave me 012 929 344. This is the same number in one of UY Mackara's applications!] It belongs to my Aunt CHHUN Chan Tha. She bought the number one year ago and lives in Konpong Speu Province.
38. I put it to you that you have fraudulently created a new identity called MEN Srey Mom in order to obtain a visa to Australia. Would you like to comment on this?
A. Actually I have two names. One is MEN Srey Mom the other UY Mackara. I was advised by someone to change my name to MEN Srey Mom from UY Mackara because I have had a visa refused in the past. [Your real is UY Mackara?] Yes. [Who advised you to change your name?] My father learnt this from someone he knows. I do not know whom. My father initially wanted me to lodge the application under my real name but because I have been refused, he changed his mind. [Have you been to Australia before?] Yes. [How do you know your sponsor?] My father and his father are friends. The date of birth on my visitor visa application is incorrect. It should be the same as the one on my 309 application. [Did UY Chandara, your older sister in Australia, know about your current application?] Yes.
There are no further questions; do you have anything you wish to add to support your application?
A. My father initially wanted to lodge the real information, but was advised to change his mind. [Again, who advised him?] I do not know.
(d) On 6 November 2001 the Visa Applicant was again interviewed by the Australian Embassy in Phnom Penh. The record of interview ("second interview record") is also reproduced. It appears at T page 205 to T207 (inclusive) and reads as follows:
Name of applicant/visa holder: MEN Srey Mom
Was an interpreter used for this interview: Yes
Date and time of interview: 6 November 2001 @ 09:30 hrs
The interviewing officer introduced herself and interpreter.
This interview is to inform you that your visa application is liable for refusal by reason of your past and present general conduct.
The purpose of this interview is to afford you the opportunity of making known your personal circumstances and anything that you wish to be taken into account when the Minister's delegate considers your case.
You will be given the opportunity of reading, amending (if necessary) and signing each page of the notes.
The factors that have been taken into consideration in determining that your current visa application may be liable for refusal by reason of your past and present general conduct are as follows:
* You were included under the identity of Ms UY Mackara (08/01/1983) in an application for a subclass 676 Tourist visa lodged by your mother VAN Channy on 16/08/1995. UY Ho was claimed as your father and UY Chandara (f) and UY Huch (m) were claimed as your siblings.
* On 25/07/2000 you lodged an application for a subclass 676 Tourist visa under the identity of Ms UY Mackara (23/11/1983). You claimed UY Ho as your father, VAN Channy as your mother and UY Chandara (f) and UY Vouch (m) as your siblings.
* You lodged this application for a subclass 309 Spouse visa on 23/01/2001 under the false identity of Ms MEN Srey Mom (08/01/1982). This application contained false and misleading statements and declarations pertaining to your true identity, family composition and other personal particulars. You were falsely included in another family and declared MEN Bunchhoeun as your father, CHUN Chantol as your mother and MEN Vannak (m), MEN Sovann (m), MEN Vanny (m), and MEN Sovath (f) as your siblings.
* You provided fraudulent documentation to support your false identity such as family book (ban krue-saa), marriage certificate, criminal clearance certificate, Cambodian passport, birth certificate and family photographs.
* You provided false and misleading information to an officer at your earlier interview on 09/10/2001 even though you were counselled on the consequences of providing false and misleading information prior to commencement of that interview.
* The combination of the above factors leads me to conclude that you have willingly provided false and misleading information and bogus documentation in pursuit of migration ends, and therefore I find that you are not of good character.
1. Do you agree with this finding that due to your past and present general conduct you are not of good character?
A. There are a number of reasons that I did this. I have two sets of parents. One are my real parents and the others are my adopted parents. My marriage was made through my adopted parents. That's why my real parents gave me to my adopted parents to organise the wedding for me. They didn't realise there would be a problem by using the other family. I did not intend to lie to the Embassy.
2. Do you wish to comment on the seriousness of these issues and the circumstances under which your conduct has occurred?
A. I went to my adopted parents when I was 3 years old because I was always sick with my real parents. My real parents wanted to take me to Australia with them. My name in the family book of my real parents was different to the name in the family book of my foster parents. The second application for the tourist visa was to see the Olympic games in Sydney and I asked to go with them.
3. What is the likelihood that you may repeat the conduct?
A. MEN Srey Mom is my real name because I live with my adopted parents.
4. What involvement did your sponsor have in these false claims made in this spouse [migration] application? Who completed your spouse application form?
A. My husband completed the form for me. I and my adopted parents and my sponsor went to the authorities for my documents.
5. Do you wish to make any comments regarding:
* the extent of disruption to any family or other ties to the Australian community that you may have if your visa is refused;
A. We are husband and wife so how can we live separately?
* whether you have a genuine marriage to an Australian citizen;
* the degree of hardship which would be caused to immediate family members that you may have who are lawfully resident in Australia;
A. My sister in Australia always has quarrels with her husband and her husband said if I apply to go to Australia he will interfere with the application to make it fail. That's why I used my adopted parent's family to organise my marriage.
[In Review: A. Because my real parents are not interested in my wedding.]
* the composition of any family you may have, both in Australia and overseas;
A. I only have the sister overseas in Australia called UY Chandara and her husband BAVCHEA Vichek Phalla.
6. Do you have any further information that you consider relevant?
A. There is as I told you that I used my adopted parents as my parents. My parents gave me to my adopted parents.
[In Review: A. After my first interview with this Embassy and I told my parents-in-law about the consequences of the first interview and they called me and cried. I did not lie to you. We love each other and cannot live separately. What I told you is true. At the first interview I denied it at first because I didn't want to be separated from my husband and I was nervous. That's all. Also my real date of birth is on 08/01/1982. My real father did not remember my date of birth so he just put down what he remembered. The real date of birth is on the spouse application. That's all.]
7. I have no further questions. Do you wish to review the notes for this interview at this time?
(e) The Applicant's statutory declaration (exhibit A1) dated 16 July 2002 reads as follows:
1. I was born on 15 October 1981 at Kao I Dang Camp, Bangkok, Thailand, and I am aged 20.
2. I was about 7 when I arrived in Australia as a refugee on 18 March 1988. I became an Australian citizen on 16 December 1991. I live with my parents and one brother and one sister. I am the eldest child.
3. I am employed by Liquor Land as a salesperson and store manager at Minto, and I also do demolition work for Demtile Contracting Services Pty Ltd.
4. I have been to Cambodia three times. The first time was from 27 March to 2 May 1995. The second time was from 25 December 2000 to 26 January 2001 and the third time was from 5 September to 13 October 2001.
5. I married Srey Mom MEN on 29 December 2000, in Phnom Penh. My wife was born on 8 January 1983 in Phnom Penh. She lives in Phnom Penh and works as seamstress. My wife has a sister, Chandara Uy, who lives in Minto with her husband, Phalla Chea, and their daughter.
6. My wife went to live with Men Bunch Oeun and Chun Chan Thoh ("adoptive parents") when she was about three. She has lived with her adoptive parents since she was three. My wife also lives with her cousins, who are the biological children of her adoptive parents. My wife's biological mother is the sister of my wife's adoptive father.
7. I first met my wife in 1995 when I went to Cambodia with my family. Our mothers knew each other and I went to my wife's house and we met. The second time I met my wife was when I went to Cambodia for the second time in December 2000, although I do not remember very well but we bumped into each other in Sydney when my wife came to Australia as a tourist in 1995/96.
8. About three or four months before I went to Cambodia for the second time, that is in about August or September 2000, I exchanged photographs with my wife of ourselves, and I asked my wife to come to Australia and she said yes, and my parents started to organize our engagement and marriage. My parents asked my wife's parents and wife [sic] adoptive parents for their approval for us to marry, and they agreed. My wife and I spoke to each other a few times before I went to Cambodia.
9. My wife and I married in a traditional ceremony on 29 December 2000. My wife's biological parents and her adoptive parents were at the wedding and my mother as well. My father stayed in Australia. I returned to Australia about four weeks after our wedding because I had to return to work, than [sic] at Inghams Chickens at Hoxton Park.
10. Before I left Cambodia, after the marriage, my wife and I lodged my wife's application for a spouse visa, at the Australian Embassy in Phnom Penh on 23 January 2001. The writing on the Form 47SP and Form 40SP is my writing except for the Cambodian script and that is the handwriting of my wife's cousin called Men Vanny. At the time of filling in the Forms I recall I was in my wife's home and present at the time was my wife, my wife's adoptive parents, my wife's biological parents, Men Vanny and my mother. Everyone was talking about the details to put in the Forms. I think at the time my mother's biological mother said to put the details of those people who live with my wife, at the question on page 102. On page 102 of the Section 37 documents where it asks for the details of my wife's parents and brothers and sisters those names are the names of the people who lived with my wife then and live with my wife now. I knew at the time of filling out the forms who were the biological parents of my wife and who were the adoptive parents of my wife. I think that the family book, marriage certificate, and other certificates that were lodged with the application, were obtained by my wife's adoptive parents.
11. When I filled in the Forms I thought that my wife's real date of birth was 8 January 1982.
12. I thought my wife's name was Mom and she was referred to in Cambodia as Mom. I had heard of the name Mackara Uy before but I did not know it was the name of my wife when she was born. My wife is known by the nick name Srey Mom and in Cambodia it means "pretty young girl".
13. I did not find about my wife's other name until I went to Cambodia for the third time in 2001. My wife had an interview at the Embassy while I was in Cambodia, and then told me after the interview, that she would be refused because she had used different names. She told me that she had been known by another name because her family had changed her name because they did not think she would be able to travel overseas with her real name. She told me afterwards that because she had visited Australia before she had been told that there was a policy that she would not be able to visit again and she wanted to visit her sister again.
14. My wife also told me that her brother-in-law, Phalla Chea, had threatened to interfere with her spouse application because he wanted her to marry his brother, who also lives in Sydney. I think that the letter on page 178 of the Section 37 documents was written by my wife's brother-in-law. My wife told me that her brother-in-law told her that she would never set foot in Australia again because she did not marry the brother of her brother-in-law. My wife told me that her father told her to use a new identity in the spouse visa to protect her from the threat of her brother-in-law. However my brother-in-law saw a video of my marriage after I returned to Australia and at the beginning of the video my name appears in Cambodian and the name "Men Srey Mom" appears also.
15. My wife told me that her brother-in-law wanted her to come to Australia and so in 2000 he sponsored her to come her [sic] as a visitor. My wife's brother-in-law wanted my wife to come to Australia to match her up with his brother. My wife's father lodged the application (at page 81 of the Section 37 documents) at the Australian Embassy.
16. My wife and I keep in touch with letters and mostly by telephone. We talk for half an hour to an hour, and we talk about three or four times a month. The last time I was in Cambodia I lived with my wife in Phnom Penh. We went to Tamao Mountain, on the outskirts of Phnom Penh, and to the beach. We also visited the Royal Palace in Phnom Penh. I miss my wife and would like her to be here as soon as possible. If my wife is allowed to come to Australia we would initially live with my parents until we found our own place.
17. I have never lived in Cambodia and I would not like to live in Cambodia. There are much more opportunities here, for example, I would not be able find work in Cambodia whereas here I have two jobs. I speak Cambodian but do not read or write Cambodian."
4. No witness statement in respect of the Visa Applicant was tendered. Nevertheless Mr Allatt did not object to her giving evidence and she did so by telephone link to Cambodia, with the aid of an interpreter in the Khmer language. The only other witness was the Applicant himself. He gave evidence in fluent and colloquial English having come to Australia with his parents when he was a child.
5. Before dealing in detail with the evidence of the two witnesses, it is convenient furthermore to refer to some of the more relevant aspects of the Visa Applicant's evidence. It is of course her character which is in issue.
(a) She was born on either 8 January 1982 or 8 January 1983 or 23 November 1983 in Phnom Penh. Her name was or is Mackara; her natural parents are Uy Ho and Van Channy (referred to as her natural parents and individually as her natural father and her natural mother respectively). The Visa Applicant has a sister who lives in Australia, and whose name is Chandara Uy, (referred to as "Chandara") and who is married to Phalla Chea, who is referred to as the "brother-in-law".
(b) The Visa Applicant's evidence was that when she was three years old (and thus in either 1985 or 1986) she was adopted by Men Bunchhoeun and Chun Chantol (who are referred to as her adoptive parents and individually as her adoptive father and adoptive mother respectively). The Visa Applicant's natural mother and her adoptive mother are half sisters; both of them and their families live in Phnom Penh.
(c) The Visa Applicant's answer to question 2 in the second interview record (T page 206) specifies that "I went to my adopted parents when I was 3 years old because I was always sick with my real parents." And the answer to question 1 in the second interview record specifies that "My marriage was made through my adopted parents. That's why my real parents gave me to my adopted parents to organise the wedding for me." The Visa Applicant's evidence was that her adoptive parents, when they adopted her, gave her a new name (Srey Mom Men). However she also said that she used the Mom name at the time of her wedding in order to obtain the blessing of her adoptive parents. T page 127 purports to be the Visa Applicant's birth certificate which indicates that her name is Mom Srey Men, that her parents were her adoptive parents and that she was born on 8 January 1982. There is no mention in that birth certificate of her natural parents. The relevant document indicates that it was issued on 15 January 2001 and that it was "copied from original copies". As I shall demonstrate, the Visa Applicant could not have been born in 1982, and I do not accept that the birth certificate in question is a genuine birth certificate.
(d) I pause at this point in order to note that there was no evidence whatsoever that the Visa Applicant was in fact adopted by her adoptive parents, either when she was three years old or at the time of her wedding, or for that matter at any other time. The Visa Applicant's evidence as given before me indicated that, notwithstanding her alleged adoption, she lived at times with her natural parents and at other times with her adoptive parents. Notwithstanding that her name after her adoption was Mom, she travelled to Australia with her natural mother on a visitor's visa in 1995 as Mackara, and she applied for a visitor's visa to travel to Australia in July 2000, and in order to attend the Olympics, again as Mackara. That second visitor's visa application was rejected, and it was that rejection which gave rise, in my view, to the "charade" which in the end resulted in this matter coming before the Tribunal.
(e) Throughout the hearing (which took place on 10 October 2002 and 11 October 2002) each of the witnesses, and particularly the Visa Applicant, referred to her parents in terms which did not always distinguish between her natural parents and her adoptive parents. It became clear however that many of the important decisions affecting her were made by her natural parents, or in some cases, according to her evidence, by both sets of parents. The wedding was paid for, according to the Applicant, by his parents (although it was attended only by his mother) and by the Visa Applicant's natural and adoptive parents; the Applicant did not know the actual costs involved. It would seem that the plan which involved a change in her date of birth was evolved by the Visa Applicant's natural father, although this is not altogether clear.
(f) On 30 August 2001 a letter was written to the Australian Embassy in Phnom Penh, by an anonymous person; that letter, which appears at T page 178, reads as follows:
I wish to inform your department about Mr. Yean Uch Spouse.
Mr. Yean Uch spouse is not telling the true of her real name on spouse application form. Mr. Yean Uch spouse name is MACKARA UY known to spouse application is SREYMOM. MEN The daughter of Mr. Uy Ho who previously apply for visa to Australia.
Mr. HO UY is trying get his daughter to Australia before.
Mr. HO UY has changed his daughter name and given a new parent's names, so he can beat the Australia Immigration systems.
This person has pay to say that MACKARA UY OR SREYMOM MEN is their daughter.
I would like your department to check Mr. Yean Uch spouse background thoroughly so they can not beat The Australia immigration systems easily.
(g) The Visa Applicant did not know who wrote the letter referred to in subclause (f); the Applicant said that he believed it was written by the brother-in-law but there is no clear evidence to support that allegation. Allegations of malign intent on the part of the brother-in-law were made by the witnesses and particularly the Visa Applicant; the nature of his threats in accordance with the evidence given before me at different times, was quite remarkably inconsistent.
(h) In his closing submissions Mr Allatt said that the Respondent is aware of the fact that official documents emanating from Cambodia are frequently false, and that the production of false "official" documents occurs regularly. I said during the hearings that this statement accorded with my own experience in Cambodian cases. I noted that in a case heard by me in Melbourne a short time ago (Cheung Yok Kouang and Minister for Immigration, Multicultural and Indigenous Affairs [2000] AATA 1010), the parties testified as to the production of false birth certificates, a false marriage certificate, a false death certificate and also a false family book. It apparently requires no more than sufficient money and a person with the right connections. I have come to the conclusion, as indicated earlier, that in this matter the document alleged to be the Visa Applicant's birth certificate is not valid. The Visa Applicant said that her natural parents had her other birth certificate but it was never produced. There was no explanation as to why so vital a document was not made available to the Tribunal.
(i) It is against this background that I heard with some surprise that the Applicant did not intend to call any of the Visa Applicant's natural or adoptive parents. There was so many allegations concerning them that evidence from them would have been helpful and indeed necessary. Mention of this aspect was made at various times during the hearing; Mr Allatt made a categoric submission in this regard in his closing address, as did I again when Mr Murphy replied. Mr Murphy said that he had taken the matter over from a colleague only two weeks ago, that he did not know what these persons would have said and that he had not had the time to investigate the matter further. I indicated that if asked, and given that it is my task to give the correct and preferable decision, I would have granted a postponement for this purpose. Mr Murphy indicated that on his side a further delay would not have been welcomed by his client. (I should make it clear that I intend no criticism of Mr Murphy).
(j) Mr Murphy, in his closing submissions, contended that the Visa Applicant's breaches of section 234 of the Migration Act 1958 ("the Act") were not as serious as had occurred in numerous other cases before this Tribunal, and including some heard by me, and cited by him. He referred in this context in particular to the numerous cases which involved a false protection visa application, which was then followed by applications to the Refugee Review Tribunal and to the Respondent under section 417 of the Act. At that time, I noted that I did not find this decision easy and that it would be necessary for me to consider the evidence and the T documents before me with particular care. At that time I had not then considered the T documents, other than in a cursory fashion. As I did so, it became ever clearer to me that the failure of any of the parents to give evidence before me must give rise to an inference that their evidence would not have been helpful to the Applicant's case.
6. In respect of the Applicant's evidence, and in amplification of, or in respect of, exhibit A1:-
(a) He was born in Thailand in 1981 in a refugee camp. He is of Cambodian origin although he has never lived in Cambodia; he speaks the Khmer language although he cannot read and write it. He came to Australia in 1988 with his parents.
(b) The Applicant left school in year 12 (in 2000) without writing his Higher School Certificate. After leaving school he worked for Inghams for about a year. In August 2001 he worked with sheet metal for a "couple of months", after which he worked for Liquorland as a storeman while also apparently doing some demolition work at night.
(c) Soon after leaving school the Applicant decided that it was time to get married. He said that it is part of Cambodian custom to marry at an age which might seem young in Australia; (he was nineteen at the time). He said that he spoke to his parents who proceeded to arrange a marriage with the Visa Applicant, and that all negotiations in respect of the marriage were conducted with her parents. (I am not sure whether he meant her natural parents or her adoptive parents, or both, but it was necessary to obtain the consent of both sets of parents). The Applicant did not know the Visa Applicant at that time although he had met her fleetingly when she visited Australia in 1995 and when he visited Cambodia in the same year, and when of course they were both very young. The Applicant said that he did not remember her from that time. Consents by all the parents having been furnished, photographs were exchanged and the wedding took place in Phnom Penh on 26 December 2000. According to the Applicant there were 500 guests at the wedding; the Visa Applicant said that there were 250 guests.
(d) In clause 5 of exhibit A1 the Applicant said categorically that the Visa Applicant's date of birth was 8 January 1983. It should be noted that exhibit A1 was signed on 16 January 2002. He said that this date was given to him by her natural parents when he travelled to Cambodia to visit the Visa Applicant in September 2001.
(e) T page 100, which is part of the spouse visa application, indicates the Visa Applicant's date of birth as 8 January 1982. That date also was furnished by her natural parents. He said that her natural parents decided to change her date of birth because of conflicts with the brother-in-law. The change was made in order to make her seem seventeen instead of eighteen. (How this could assist was altogether unclear to me). Before he married the Visa Applicant, the brother-in-law had desired (so I was told) that the Visa Applicant should marry his own brother resident in Australia.
(f) The Applicant's evidence as to the Visa Applicant (much of it hearsay) was that he had always known her as Mom and that he first knew of her other and original name when he received the Respondent's decision. He said "I don't know too much about her previous name". When he asked the Visa Applicant about it she said that it had to do with her brother-in-law.
(g) In clause 6 of exhibit A1 the Applicant said that the Visa Applicant went to live with her adoptive parents when she was three. As appears from clause 7 of exhibit A1 there was little contact between the Applicant and the Visa Applicant prior to marriage.
(h) In cross-examination the Applicant said that the date of birth set out in clause 5 of exhibit A1 was a mistake by him. It was then pointed out to him that according to his evidence-in-chief, it was not a mistake at all and that it rose from information given to him by her natural parents. He said that he came to realise the date "error" when he received the Respondent's decision and that her natural parents thought it to be in her best interests that the date be changed.
(i) The Applicant's attention was drawn to T page 115 where the date (in his handwriting) is 8 January 1982. He said that this is the real date of birth. It was pointed out to him that this is the date reflected in her birth certificate (T page 127) and in the marriage certificate (T page 126). His reply was that in the period leading up to the hearing he was told by her parents to reflect the date as 8 January 1983.
(j) It was clear then that the date in clause 5 of exhibit A1 (8 January 1983) was intended, and not (at least in the sense intended) a mistake at all. However if clause 5 was incorrect then so too must clause 11 of exhibit A1 be incorrect.
(k) The Applicant was asked how changing the date could assist in overcoming the alleged problem with the brother-in-law. He said (understandably enough) that he did not know. His attention was drawn to the fact that 8 January 1983 was reflected in the 1995 visitor's visa application (T page 51) and asked why he thought this might be so (and how indeed it could relate in any way to the brother-in-law). His answer was, as it was on a number of other occasions, that he did not know "too much detail".
(l) His attention was drawn to the fact that in the second visitor's visa application in 2000 her name was again reflected as Mackara but that her date of birth on that occasion was reflected as 23 November 1983 (a different date altogether). He said that this was the brother-in-law's idea. (As I said earlier in these reasons, much of the Applicant's evidence was, of necessity, hearsay).
(m) In general terms, the Applicant was usually vague about dates and certainly unclear as to how the brother-in-law figured in the matter.
(n) The Applicant said that if this application failed he would not like to go to Cambodia because he felt unsafe there. When asked to say why he felt unsafe he referred to robberies in Cambodia. When his attention was drawn to the fact that robberies occur in Australia also, he simply said again that he did not feel safe in Cambodia. He made it clear that life in Australia was preferable to life in Cambodia where although he could speak the language he could not read and write it, and where he would also, he said, find it difficult to obtain work.
(o) The Applicant said that he has visited Cambodia once since the marriage and that he has maintained contact with the Visa Applicant by phone (three or four times a month) and by letter.
7. Before dealing in detail with the Visa Applicant's evidence it is convenient to refer in some detail to the two visitor's visa applications. In 1995 the Applicant's natural mother applied for and received a visa to visit Australia. The child Mackara, born 8 January 1983, was recorded as accompanying her. That visit was sponsored by the brother-in-law. The family details, which required details of all children of the Visa Applicant's natural parents, included the Visa Applicant, Chandara, and Uy Huch (T page 65). The order in which T page 65 reflects their ages at that time and being 23 in the case of Chandara, 13 in the case of Huch, and 12 in the case of Mackara indicates in the clearest possible terms that Huch was older than the Visa Applicant. The relevant documents include (T page 70) a letter of permission by the Visa Applicant's natural father in respect of his daughter, referred to as Mackara, born 1983, to travel to Australia. The Family Card (T page 75) refers to the three children as Chandara, a female born 1972, Huch, a male born 1982 and Mackara, a female born 1983.
8. (a) I pause in order to note that the Visa Applicant was, in 1995, either 12 or 13 and that she would have played little part in that visa application; she had accompanied her mother. It is significant though that all of the relevant accompanying documents referred to her as the daughter of her natural parents with a date of birth in 1983. The likelihood that she was born in 1983 is reinforced by the fact that her brother (and as I have said T page 75 makes it clear that he was a senior in age) was born in 1982. It is possible of course that she was also born in 1982 but in such event this must have occurred in late 1982 and certainly not on 8 January 1982. It follows then that she could not have been born on 8 January 1982, and so that the birth certificate in the T documents is false.
(b) T page 81 is an application by the Visa Applicant, as Mackara, to visit Australia. It was signed on 24 July 2000 (T page 84) and reflects her date of birth as 23 November 1983. T page 85 refers to her natural parents as her parents and Chandara and Uy Vouch as her siblings. It refers (T page 82) to the fact that she wished to see the 2000 Olympics. The signature at T page 84 differs from the signature of her spouse visa application, but it is likely that this arises from the difference in names. The papers in this respect specify that she was then self-employed as a home tailor. The list of family members accords with the information provided in respect of the 1995 application, except that her date of birth is reflected differently. T page 90 is a copy of her passport which indicates that the holder was Mackara born 23 November 1983, that the date of issue was 14 July 2000 and its date of expiry is 14 July 2003; that passport number is 117304.
(c) The Visa Applicant did not deny signing the application but merely said that she did not remember doing so. Although there is no specific evidence before me to the effect that the signature on that application was that of the Visa Applicant, there is at the same time no reason to doubt that she did sign it, and this is certainly so on the balance of probabilities.
9. (a) T page 94 and T page 95 contain the reasons for rejection of the visitor's visa application. It stated inter alia that in 1995 when the Visa Applicant accompanied her natural mother, they entered Australia on 5 September 1995 and "subsequently extended their stay on shore before finally departing on 16 March 1996". The Visa Applicant departed as Mackara.
(b) The Applicant in his evidence had said that he knew nothing whatsoever of the 2000 visa application and that the Visa Applicant had never spoken to him of it.
(c) In her spouse visa application, which appears at T page 98 and following pages, the Visa Applicant gave her name as Mom born 8 January 1982. She referred (T page 100) to a passport number 0131550 issued on 7 December 2000 and expiring 7 December 2003; that number is of course different from the number of the passport in the name of Mackara at T page 90. Significantly, at T page 102 she was asked for details of "all your brothers and sisters (including full, half, step and adopted brothers and sisters) and answered that question by inserting the names of Men Vannak born 8 April 1974 (male), Men Sorann born 3 August 1977 (male); Men Vanny born 10 February 1980 (male) and Men Sorart born 16 May 1986 (female). These persons are presumably the children of the adoptive parents, and they would be her adoptive siblings if she had been adopted; in that event the names of her natural siblings were also required. At T page 105 she stated that she first met and began a relationship with the Applicant in March 1995.
(d) The Applicant's evidence, as I have noted, was that although he did meet the Visa Applicant in 1995 the meetings were fleeting and he did not remember her from that time. Of course they were both young at the time; the Visa Applicant would have been either 12 or 13.
10. I come now to the evidence of the Visa Applicant;
(a) She said that her full name was Men Srey Mom and that her date of birth was 8 January 1982.
(b) She said that she did not remember her first trip to Australia because she was so young. She remembered that she went with her natural mother. She said that she had a sister in Australia but did not remember how long her sister had been married. The trip in 1995 was organised by her brother-in-law.
(c) She was then asked about the visa application in July 2000 and she said that she remembered it. When asked who made it she said that she did not remember but that her brother-in-law sponsored it.
(d) The Visa Applicant's attention was drawn to the fact that she used the name Mom in the visa application. She said that that was her name and that her adoptive parents, who adopted her when she was three, gave her the name Mom when they adopted her. She said that the name Mackara appears on her original birth certificate and that her natural parents were in possession of her original birth certificate. (As I have said, the latter birth certificate was never produced.)
(e) She said that she married the Applicant at the end of 2000 at a ceremony where there were 250 people. The application for a spouse visa was prepared by the Applicant and by her brother; (the Applicant had said that it was prepared by him and the Visa Applicant's cousin). She claimed that she signed it without reading it.
(d) She was then asked why she used the Mom name and not the Mackara name. She said that she "had a little problem - my brother-in-law threatened to interfere with my coming to Australia." She claimed that the brother-in-law problem was one with which her natural parents did not want to deal and left it to her adoptive parents. She claimed that the brother-in-law was upset because, going back to 1995, he had wanted her to marry his own brother.
(e) She also said that her adoptive parents wanted "to give me their blessing" on her wedding and that using the Mom name given by them would achieve that objective.
(f) When asked what her name was she said that she was known as Mom.
(g) She was referred to question 38 in the first interview record and the fact that she answered that she had changed her name to Mom because she had had a visa refusal previously. She also said that her father wanted to lodge the real information but was advised to change his mind.
(h) The Visa Applicant was then asked about the first interview and the answers recorded in the first interview record. She said that she did not answer some questions truthfully because she was afraid of her brother-in-law. She said also that it was her first interview and that she was frightened. (The Tribunal notes that there is no mention of the brother-in-law in the first interview record; there is a reference to the brother-in-law in the second interview record, but only to the effect that her sister and her brother-in-law were quarrelling and at T page 206 "if I apply to go to Australia he will interfere with the application to make it fail. That's why I used my adoptive parents family to organise my marriage.") She then went on to say, near the foot of T page 206, and in review, "because my real parents are not interested in my wedding."
(a) The Visa Applicant said that she used the Mom name only within her family, which included both her natural parents and her adoptive parents. She said that she has a second birth certificate in the original name and repeated that it was in the possession of her natural mother. She was asked when her birth certificate (T page 127) was obtained and who obtained it and she answered "I don't know" to both questions. There were many other similar answers.
(b) When asked why her birth certificate recorded her adoptive parents as her parents instead of her natural parents, she said that her natural parents gave her away. She did not know of any adoption certificate.
(c) She was then asked why her date of birth was reflected as 8 January 1983 in the 1995 visa application. She answered, according to my notes, that it was "because my parents put the date according to the payroll". That answer was of course incomprehensible to me and I believe to the representatives of the parties, and may perhaps have been an error in translation.
(d) The Visa Applicant was then referred to the 2000 visa application. She said that she did not recall the circumstances, did not know why the date of birth was recorded as 23 November 1983, did not know who made the application and did not know why it was rejected. When asked whether she remembered signing it, she said that she did not because "it is a long time ago". (This occurred about two years ago).
(e) She answered "I don't know" to a number of further questions referrable to the 2000 application and in particular to questions as to whether her brother-in-law was trying to match her with his own brother. When asked if she had any knowledge at all of this proposed match, she said only that they (presumably referring to her sister and brother-in-law) wanted to bring her to Sydney to see the Olympics.
(f) She was asked whether at any time it was said in her presence that her brother-in-law had such a match in mind. Her answer was that he said something about it when he came to visit but she did not pay attention. Further questions elicited an answer to the effect that she was too young.
(g) In answer to questions put to her by Mr Allatt the Visa Applicant insisted that it was true that she changed her name and date of birth because of fear of her brother-in-law and in consequence of her rejection of his brother. It was then put to her that she had given evidence that she was unaware of any threat, and her answer was that she did know of it. However, she could not remember any mention of the matter after 1995. When she was asked, when in recent times she had heard that her brother-in-law wanted to harm her, she said "I am not clear - maybe my parents will know."
(h) There were a number of further questions as to the brother-in-law. In general, terms her evidence was both inconsistent and unclear. Indeed it became even more bizarre when she alleged that her brother-in-law had threatened that he would cause severe physical harm to her father; she used a lurid term in this connection which apparently has a meaning in Cambodia.
(i) Mr Allatt put it to the Visa Applicant that she had on various occasions given various different reasons (and inconsistent reasons) for using the Mom name in her spouse visa application. Mr Allatt referred in this context to the following differing reasons in particular:
(i) She said in evidence-in-chief that she used the Mom name in order to obtain her adoptive parents blessings at the time of her marriage; alternatively it was given to her when she was adopted at the age of three.
(ii) She told the Interviewing Officer (T page 186) that she did so because of her previous failed visa application.
(iii) She changed her name for fear of her brother-in-law.
(iv) She said that her real parents gave her to her adoptive parents to organise her wedding, in which they were not interested.
(j) She was then questioned as to her answer to question 11 in the first interview record. In question 10 she answered that she had lived at the address given for two years. Question 11 asked her what her previous address was. Her answer was "I cannot remember where I lived". She was asked as to why she was unable to answer question 11 and her answer was that it was difficult to reply because she had two sets of parents and lived in both of their homes.
She said also that she was confused and frightened; it was then put to her that these questions occurred in point of time before the interviewer confronted her with the fact that he knew that she had lied about her visitor's visa applications.
(k) She agreed that in relation to question 37 in the first interview record she was shown photographs of herself but had denied that they were of her and said they were photographs of a relation. It was then that, in relation to question 38, she agreed that she had changed her name because of the prior visa refusal and said that her natural father had told her to do so.
(l) She was then asked as to her occupation. She said that she was a seamstress but that she also worked in a hair or beauty salon. She was asked why at the first interview she said that she was studying at home. She replied that she was studying at home to be a seamstress. "Home" in this context meant the home of her adoptive parents in Olympic market in Phnom Penh; she said that this address is both the home and the shop of her adoptive mother.
(m) I do not think it necessary for me to go into any detail as to the Visa Applicant's answers as to various addresses.
(n) She again said that she was given in adoption to her adoptive parents at the age of three because she was "sick a lot". Mr Allatt then put it to her that there was yet a further reason for the change of name and referred her to her answers near the foot of T page 206, where she referred, as I have said, to quarrels between her sister and brother-in-law, to the fact that her brother-in-law would interfere, and that her real parents were not interested in her wedding. (As I have said, no mention of her brother-in-law was made at the first interview).
(o) It was put to her, and she agreed, that her natural parents contributed to and were present at the wedding; she had said that they wanted to be involved, but only as guests, and also that they were not interested in her wedding.
12. (a) On the second day of the hearing, Mr Murphy tendered exhibits A2 and A3.
(b) In re-examination he asked the Visa Applicant as to her birth year and she said that categorically it was the year of the chicken, which is a reference to 1982.
13. (a) In general terms the evidence of the Visa Applicant was remarkably inconsistent and to a very large extent untruthful. Her various reasons for the change of name and the alternation in her date of birth were particularly inconsistent and clearly not true. Nor do I accept the various (and different) stories as to her brother-in-law, either as to any threats, or when they were made.
(b) At one stage during her evidence, I intimated to the Visa Applicant that I thought that she was making it up as she went along and that it was extremely important that she tell the truth. It was after that warning that she insisted that her date of birth was in 1982. As I have demonstrated earlier in these reasons, that could not possibly have been true.
(c) The Visa Applicant lied at the interviews about a number of matters. Her statements as to the adoption were particularly inconsistent. She said that she was handed over at the age of three because she was sick and a new name was given to her at that time. Alternatively, she used the new name after her marriage as a blessing in relation to her adoptive parents. Her natural parents were not interested in her and were, in particular, not interested in her wedding. Yet it was her natural parents who assented to it and who paid for it, together with her adoptive parents. (In the absence of any evidence, I do not know what the relevant financial contributions to the wedding were).
14. (a) To make rational sense out of all of this contradictory evidence is not easy. As I indicated earlier in these reasons, the evidence of the parents was clearly required. In the light of all of the evidence before me, the fact that none of them did so is perhaps understandable, but, nevertheless, gives rise (as I have said) to an adverse inference.
(b) After careful consideration of the evidence before me, I have formed the view that there may perhaps be a rational explanation which fits all of the evidence before me and which, if only on a balance of probabilities, and accepting that it does require some guess work, may be the correct version. I deal with this in clause 16 below.
15. (a) I must first consider whether or not the marriage is in fact genuine.
(b) I found it surprising that a young boy such as the Applicant should have thought that he was ready for marriage shortly after leaving school and when he was nineteen. He said that this was Cambodian custom. This may be so, but he is not a Cambodian except as a matter of ethnicity. He has grown up in Australia and talks in a manner similar to that of other young Australians of similar education.
(c) Leaving aside the fact that there are some incorrect statements in exhibit A1, the Applicant's evidence (much of it hearsay) was reasonably credible. Mr Allatt's cross-examination was not directed to the genuineness of the marriage and I consider that I should accept that it is genuine. There was after all a large wedding; he has visited her in Cambodia and there is communication between them. (At the end of her evidence, the Visa Applicant claimed in emotive terms that she loved her husband deeply; it must be remembered in this context that they have lived together for a matter of weeks only).
16. On the balance of probabilities I consider that:
(a) The evidence of the Visa Applicant before me was largely fictional.
(b) There never was an adoption; the mothers are sisters and in the nature of things relations have been close, perhaps made closer by the fact that the Visa Applicant may at some time have worked for, or been taught the seamstress trade by, her adoptive mother.
(c) The birth certificate before me is false, given that it records her date of birth as having occurred in 1982, which is not possible in the light of the date of birth of the Visa Applicant's older brother, and in addition it records the wrong couple as her parents.
(d) The 1995 visa application was the only fully truthful visa application. The 2000 application was untrue in relation to her alleged date of birth.
(e) The spouse visa application was untruthful in a number of important respects, and particularly as to her name, date of birth, parents and siblings. One of her two passports is probably false; she obtained two passports at different times, in different names, within a matter of months; this is of course a matter for the Cambodian authorities, except for the fact that she used the passports in applications made to the Australian authorities.
(f) After the 2000 visa application was rejected, the Visa Applicant's family was concerned, to a degree, which was probably in excess of anything reasonable. They may perhaps have thought that that rejection meant that future applications in that name would also be rejected. This then lead to a whole elaborate charade which required a new name, a new date of birth, a new passport, a new birth certificate, new siblings (to the exclusion of the real siblings) and also evidence as so her abandonment by her natural parents when she was three.
(g) In fact there was no abandonment; decisions were still taken by her natural parents; they consented to the marriage and paid, in part, for the wedding. The Visa Applicant (after the alleged adoption) and in her real name, travelled to Australia, and in 2000 tried to travel (in her real name) to Australia.
(h) Once the change decision was made, the Visa Applicant and her family presumably felt that it was necessary to maintain the charade. This required a false spouse visa application. It also required the Visa Applicant to lie at her interviews. She said that she lied because she was frightened; as I have said she had no reason to be frightened until she was confronted with her own untruths. But she clearly felt obliged to maintain the fiction thereafter at the second interview, and then thereafter in her evidence before me.
(i) I do not think that the Applicant knew of the deception, although there must been times when he had reason to be suspicious. If he was not suspicious, I am prepared to accept that this may be so because of his youth and lack of sophistication.
17. (a) There have, on the balance of probabilities, been numerous breaches of section 234 of the Act. There was no evidence of recent good conduct. The penalties prescribed for breaches of section 234 of the Act are such that I must find that the Visa Applicant does not pass the character test.
(b) At the closing submission stage I indicated that I thought that some of the Visa Applicant's evidence could not be truthful. It was when I considered the T documents carefully that the extent of her untruthfulness became clearer. Her statement at the end of her evidence that she was born in 1982, in the context of what had gone before, was particularly reprehensible.
(c) Mr Murphy pointed out that under the Migration Regulations a spouse visa cannot be granted to someone under the age of eighteen. He said that this being so, there was no motive to make her a year older because she could, by waiting a short period, have married in January 2001, and after she had really turned eighteen. Put in other words, and as I understood Mr Murphy, to allege that she was born in 1982 and not 1983 could not have been motivated by the fear of refusal of the spouse visa on these grounds. I do not think I need to express a view on this contention; it is possible that there was a reason why the wedding had to be held when it was. Mention was made in evidence of a visit (apparently conventional) to a fortune-teller. It may be that the date chosen had some special significance. But this also is a matter of conjecture only. It is clear on the evidence before me that she could not have been born in 1982.
18. (a) This brings me to a consideration of the discretionary powers contained in Part 2 of Ministerial Direction No 21 - Visa Refusal and Cancellation under Section 501 of the Migration Act 1958(referred to in brief as "Direction 21"). References to clauses should be construed as references to numbered clauses in Direction 21.
(b) Clause 2.3 of the Direction 21 provides that the primary considerations are:
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children."
19. (a) Clause 2.3(c) is not relevant in this matter.
(b) Clause 2.3 must be read in conjunction with clause 2.5, which provides:
"2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)"
(c) In respect of clause 2.5(a), the conduct was undoubtedly serious, within 2.6(c). There have been, as I have said, numerous breaches of section 234 of the Act. The evidence before me by the Visa Applicant was largely false, precisely because the Visa Applicant felt constrained to persevere with the charade.
(d) In respect of clause 2.5(b) the risk of recidivism is difficult to assess. If the Visa Applicant's breaches had been confined to false and misleading conduct at the interviews, I might have been inclined to assess the risk as low. The fact that she gave false evidence at the hearing however, obliges me to assess the risk at a higher level.
(e) In this case the deterrence factor is of particular relevance. Mr Murphy referred me to the decision of Deputy President Forgie in Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 and contended that this case is comparable with that decision. I disagree; the decision in Ly and Minister for Immigration and Multicultural Affairs [supra] is distinguishable, firstly, because of the existence of a child whose interests were taken into account, and secondly, because of the fact that, at least at the evidence stage, the visa applicant in that case admitted that she had used false documentation. Deputy President McMahon's statement in Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148 at 155 -156 reads as follows:
"This section sets out the circumstances in which non-citizens may become illegal entrants. Many of the provisions of the section are reflected in the regulations, particularly in Sch 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first subsection to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld."
(f) That statement has been cited with approval subsequently. As I have said, the situation in Cambodia is in my experience particularly difficult. There is, apparently, in Cambodia a body of "arrangers" who are willing and prepared to concoct a fictitious story and moreover have the means which enable them to procure the issue of false certificates of every description. In some cases the whole charade and the false documents are, on close analysis at least, to some extent, unnecessary. So far as I can tell in the absence of evidence by the adoptive and the natural parents, the false evidence and documentation arose in consequence of the visa refusal in 2000.
(g) It was at this stage that Mr Murphy contended that the Visa Applicant's offences are not as serious as those of visa applicants who make false protection visa applications, followed by applications to the Refugee Review Tribunal and the Minister under section 417 of the Act; that contention was based on the proposition that these latter cases involve Australia in great expense. I do not think that expense is the decisive factor, while agreeing that the false protection visa applicants do cause considerable expense to Australia. It must also be remembered however that in cases such as this, there is expense and inconvenience so far as the Australian Embassy is concerned. The task of the Australian Embassy in Phnom Penh must be particularly difficult because so much is not what it seems.
(h) In this case, it is necessary in my view to send a strong message that conduct of this nature will not be tolerated.
(i) With regard to clause 2.3(b) read with clause 2.12, it is of course trite to say that Australia expects non-citizens to obey its laws. It was contended that the Visa Applicant would, if this application fails, suffer a loss of face. Just such an allegation was made before Deputy President Wright in Chau and Minister for Immigration and Multicultural Affairs [2001] AATA 485, but without success. This is, in my view, a case where in the light of all of the false statements and perjury, the Australian community would expect me not to recommend the grant of a visa. As I considered the T documents and evidence in detail, I thought of how apposite the words of the poet were when he said:
(j) As to clause 2.17 I accept that to refuse a visa will cause hardship to both the Visa Applicant and the Applicant. The Visa Applicant as I have said spoke of her deep love for the Applicant; again as noted previously she has spent a matter of weeks with him. Although there are some difficulties in relation to the Applicant's evidence, and in particular as regards her date of birth and the manner in which it came to be repeatedly changed, I think that it is likely that he was innocent of the deception, even though it might perhaps have, were he only more sophisticated, been put on his guard.
20. On balance, this is not a case where the discretion can be exercised in favour of the Visa Applicant and the decision under review is therefore affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of:
Signed: .....................................................................................
Date/s of Hearing 10 October 2002 and 11 October 2002
Ly
Minister for Immigration and Multicultural Affairs
The Tribunal affirmed the delegate's decision refusing the subclass 309 provisional spouse visa; the discretionary power under Direction 21 was not exercised in the visa applicant's favour (para 20).