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Ung, Rany [2000] MRTA  2435  (16 August 2000)

Last Updated: 1 September 2000

 [2000] MRTA 2435 

VISA APPLICANT: Rany UNG

REVIEW APPLICANT: As above

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: James Galatas

MRT FILE NUMBER: V99/05734

DIMA FILE NUMBER: CLF1999/4336; V99/300287

DATE OF DECISION: 16 August 2000

AT: Melbourne

DECISION: The Tribunal affirms the decision under review to cancel the Short Stay (Visitor)(Class TR) visa, subclass 676 granted to the Visa Applicant.

CATCHWORDS: Cancellation, exercise of discretion.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs, details of which are as follows:

Visa Applicant Details:

Name: Rany UNG

Date of Birth: 3 February 1970

Sex: Female

Nationality: Cambodian

Decision Type: Cancellation of visa

Visa Class/Subclass: Short Stay (Visitor)(Class TR) visa, subclass 676

Date of Visa Grant: 12 May 1999

Date of Visa Cancellation: 24 August 1999

JURISDICTION AND STANDING

2. The application for review was validly made under section 338 of the Migration Act 1958 (the Act), (which goes to decisions reviewable by the Tribunal), and it complies with section 347 (which goes to the standing of the Review Applicant):

Review Applicant: Rany UNG

Date of Review Application: 1 September 1999

Relationship to Visa Applicant: Self

LEGISLATION, VISA CRITERIA AND POLICY

3. The Act (as amended) and the Migration Regulations 1994 (the Regulations) provide for different classes of visas. Government policy guidelines are an aid to the interpretation and application of the prescribed criteria for these visas. Most policy guidelines are set out in the Procedures Advice Manual (PAM 3) issued by the Department of Immigration and Multicultural Affairs (the Department).

4. In reaching its decision the Tribunal is bound by the Act and the Regulations and applies relevant government policy which is lawful. General policy guidelines are applied by the Tribunal unless there are cogent reasons to the contrary. General policy directions issued by the Minister pursuant to section 499 of the Act are applied wherever they are relevant (see generally Re Drake and Minister for Immigration and Ethnic Affairs (No.2)(1979) [1979] AATA 179; 2 ALD 634 and Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144.)

5. The relevant legislation in force at the time of the cancellation of the visa and the relevant policy are set out below:

Relevant legislation:

Subdivision C of Division 3 of Part 2 of the Act

Sections 101,103 ,107,108,109 and 111 of the Act

Schedule 2 of the Regulations

Relevant policy:

PAM 3

MSI 280

Relevant Case Law:

Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 515; (1993) 45 FCR 570

Hsiao v Minister for Immigration, Local Government and Ethnic Affairs (1992) 36 FCR 330

EVIDENCE

6. The Tribunal had before it the material contained in the Department's files and material from its own file. A hearing was held on 22 December 1999 at which the Visa Applicant/Review Applicant (the Visa Applicant) gave oral evidence assisted by an interpreter and a migration agent.

7. The Visa Applicant was born in Cambodia on 3 February 1970. She first entered Australia on 24 May 1999 as a holder of a Short Stay (Visitor)(Class TR) visa, subclass 676. The Visa Applicant had been granted the visa at the Phnom Penh Post on 19 May 1999 and was valid for 3 months until 24 August 1999. The stated purpose of the visit was to accompany her husband Chi Bun Heng on their honeymoon to Australia. The parties were married on 18 April 1999 in Cambodia. Both the Visa Application Forms 48R for the Visa Applicant and Mr Heng were lodged at the Phnom Penh Post on 12 May 1999. There is evidence of marriage as submitted by Mr Heng (DIMA file CLF1999/4336 folios 55 and 56) and the Visa Applicant and Mr Heng clearly state in the Forms 48R that their marital status is `married' and the Visa Applicant states "We are newly married couple. We are going on our honeymoon and visiting friends and relatives."(DIMA file CLF1999/4336 folio 51). The Visa Applicant entered Australia in Melbourne on 24 May 1999. Mr Heng arrived in Australia three days later at Sydney Airport. He was turned around at the Primary Line, as after questioning, it was found that his bona fides were suspect. It was found that Mr Heng could not provide details on the friend he intended to visit. It was also found that Mr Heng had twice previously been refused visitor visas when he applied using the name SAR Pros.(DIMA File V99/99/300287 folios 1-8).

8. On 12 July 1999 the Visa Applicant lodged an Application to remain permanently in Australia on a Spouse (After Entry) Visa Class 801. The Visa Applicant submitted that on 11 July 1999 she married Mr Phoung Thuan Pham an Australian permanent resident. The Visa Applicant stated that she had met her husband in Australia on 1 June 1999. (DIMA file CLF1999/4 folio 7).

9. The Visa Applicant was notified on 24 August 1999 of an intention to cancel her visa under section 109 of the Act and was asked to respond to this notice. The notice stated in part:

"It has come to the Department's attention that you may not have complied with sections 101 and 103 of the Migration Act 1958 which state:

"101. A non-citizen must fill in his or her application form in such a way that:

(a) all questions on it are answered, and

(b) no incorrect answers are given. "

" 103. A non-citizen must not give an officer, the Minister, or a tribunal

performing a function or purpose under this Act, a bogus document or cause such a document to be so given. "

because you produced bogus documents to support your application for a tourist visa lodged at the Australian Embassy in Phnom Penh and you did not complete your visa application correctly.

If you did not comply with section 101 and 103 your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply."

10. On 24 August 1999 she was interviewed by a Departmental officer. The Visa Applicant stated that she believed that she had told the Department the truth and had given correct answers. She stated that she was not responsible for providing the documents and information. She stated that her parents and her husband's parents were responsible. She stated that she did not believe that the Department should cancel her visa.

11. The Department cancelled the Visa Applicant's visitor visa on 24 August 1999, stating in its notification of the decision, in part that:

"I consider that the visa holder did not comply with sections 101 & 103 of Subdivision C.

Reasons:

S 101 - Visa application to be correct.

The applicant did not comply with section 101 of Subdivision C, as she did not provide accurate information on the visa application form. Ms Ung claimed on the visa application, form 48R lodged in Phnom Penh that she intends to spend her honeymoon in Australia, however, she travelled alone, leaving her husband behind. Furthermore, she married within Six weeks of her arrival in Australia whom she allegedly met on 01/06/99.

In addition, she claimed that she has a sister living in Australia. At interview, however, she stated that she has only two sisters and they are both in Cambodia.

There is doubt also about Ms Seng's address in Cambodia. She could not recall the street

name or part of the building number. According to the Australian Embassy in Phnom Penh, who verified the address, Ms Ung had provided a bogus address in Cambodia.

The applicant also provided false information about her family members in Cambodia and Australia. At interview she stated that she only had two sisters in Cambodia. On the family composition form, however, she provided names of family members that include two brothers and two sisters living in Cambodia and one sister living in Australia. She signed the form as being true and correct in all details.

In addition, Ms Ung did not travel to Sydney where she stated she had relatives, but came straight to Melbourne. The application form contains addresses of relatives in Cabramatta and Canley Heights (NSW).

S 103 - Bogus documents not to be given.

Ms Ung provided two bogus Australian Citizenship Certificates for Ravy Ung (who she claims is her sister living in Cambodia) and Chi Heang Heng (who, according to the 48R application form is her brother-in-law). Neither records exist on the DIMA Citizenship database."

12. The Department on 24 August 1999 also assessed the Visa Applicant's response and all the prescribed circumstances as set out in regulation 2.41 and decided to cancel the visa holder's visa. On 1 September 1999 she sought review by the Tribunal of the decision to cancel the visa. The Visa Applicant has been granted a Bridging E (Class WE) visa, subclass 050, pending the outcome of the review.

13. Prior to the hearing, on 26 October 1999, the Tribunal forwarded particulars of information to the Visa Applicant seeking comments, pursuant to section 359A of the Act and requested further information pursuant to section 359 of the Act. On 8 November 1999 the Visa Applicant, through her migration agent, responded in part as follows:

"the Tribunal invites "clarification" that my client was married to Chi Bun Heng before she travelled to Australia. I have seen my client on 4 November 1999 and she instructs me that she was indeed married to Chi Bun Heng before she travelled to Australia.

You also ask for "evidence" that my client has a sister by the name of Ravy Ung who lives at Flat 9/16 Morris Road, Canly Heights. In answer to this, I am instructed that my client does indeed have a sister by the name of Ravy Ung but that sister lives in Cambodia. You have also sought "evidence" that my client's usual residence in Cambodia is as stated at paragraph C on page 2 of your letter. I am instructed that the address supplied by the Tribunal is not my client's usual address in Cambodia.

In regard to the above matters, my client instructs me that she gave her affairs into the hands of a migration agent in Phnomh Penh and because she does not read or write English herself, she relied entirely on the migration agent's expertise in obtaining a visitor visa for her to come to Australia. Unfortunately, the level of skill and integrity of migration agents in Cambodia leaves a lot to be desired. Many of them are virtually illiterate in English and their personal honesty leaves a lot to be desired. It is extremely unfair to blame the applicant for the actions of an agent whom she had paid to carry out work on her behalf but who has exceeded his authority by apparently providing the Embassy with false or inaccurate evidence in order to obtain a visa for my client.

I reiterate, that my client believes that she has done nothing wrong other than to pay a migration agent for his services in preparing her visitor visa application. As she does not read and write English, she had no way of knowing precisely what was contained in her application and given the Australian Government's abject failure to properly police the actions of migration agents overseas, a great deal of the blame for Ms Rany Ung's current predicament should be laid directly at the door of the Minister for Immigration."

14. The Visa Applicant gave oral evidence to the Tribunal on 5 May 2000. She told the Tribunal that she arrived in Australia on 24 May 1999 on a 3-month visitor visa. She said that she applied for the visa in Cambodia together with her new husband but that he subsequently changed his mind and she decided to come by herself. She said she then met and married another man in Australia. She said that the original purpose of the visit was to visit her first husband's relatives in Australia. She told the Tribunal that she had no close relatives in Australia. She said that her parents and all her brothers and sisters lived in Cambodia. She stated that her mother was still alive but her father passed away in October 1999 when she was in Australia. She said she had 2 brothers and 2 sisters and they all lived in Cambodia. She said that they all lived with her mother, apart from one sister who lived separately in Cambodia. She also prior to coming to Australia lived with her with her mother and her then husband. She said the address at which they all lived at was 55 Beo 115 Group 31 Psadepo 2 Kanntolkok Phnom Penh Cambodia.

15. The Visa Applicant told the Tribunal that she married her first husband Mr Heng Chi Bun on 18 April 1999 and they lived together for about one month only. She said that her parents had encouraged her to get married to him but she said they did not actually love each other at all. She said that after living together for one week there was conflict and she wanted to separate but both parents encouraged them to conciliate and live together. She said she arrived in Australia on 24 May 1999 and as her husband did not come with her she came to Melbourne to visit her friends who lived in Springvale. She told the Tribunal she there met Mr Phoung Thuan Pham on 1 June 1999 and they subsequently fell in love and married on 11 July 1999. On 12 July 1999 the Visa Applicant lodged an application for permanent residence as a spouse. The Tribunal asked the Visa Applicant how she could marry in Australia if she was already married in Cambodia. She said that she had divorced her first husband and showed the Tribunal a document that she claimed confirmed that a divorce had been granted. Unfortunately the document was of poor quality and its date could not be ascertained by the interpreter. The Visa Applicant could not recall the exact date on which her divorce had been granted but stated it was during last year, in 1999.

16. The Visa Applicant told the Tribunal that her visitor visa was cancelled on 24 August 1999. She said she was told her visa had been cancelled as the documents she had provided were not genuine. She said she was told her migration agent in Cambodia didn't do the documents properly and put in a wrong address from that of her current address. She told the Tribunal that the migration agent completed the application form for her visa on information given to him by her parents and in particular her mother. She was not able to recall the agent's name although she said she met the agent on three occasions. She said that her mother spoke to the agent and provided all the information to the agent. The Visa Applicant told the Tribunal that the agent put the address on her application form. She said the address on her application form was not correct. She said the telephone numbers on her application form were also not correct. She said the reasons given for the visit on her application form in relation to Question 16 namely, "We are newly married couple, we are going on our Honeymoon and visiting relatives and friends" were correct. In relation to Question 17 "Do you have any relatives, friends or contacts you will visit in Australia?" The Visa Applicant stated that that information shown there was incorrect. She said that the people named there were actually in Cambodia. She said that she does have a sister as shown, by the name of Ravy Ung but her sister lives in Cambodia and not in Australia. She told the Tribunal that she cannot read English and she had no idea why the agent put that information on her application form. In relation to Question 22 "Are you currently employed?" The Visa Applicant explained that the occupation and details shown in response were not her occupation or details but those of her ex-husband. In relation to the Declaration at Question 29, the Visa Applicant confirmed that it was her signature and that she had personally signed the declaration. In relation to the Family Composition Form that was submitted with her visa application form, the Visa Applicant confirmed that the details and address for Ravy Ung were not correct. She stated that her sister was still living in Cambodia. The Visa Applicant had also signed the Family Composition Form dated 12 May 1999.

17. The Visa Applicant explained that she now lives with her new husband and her friends in Springvale. She said she wished to remain in Australia and live permanently with her new husband. She said that her family would not accept her if she were forced to return to Cambodia, as she has not talked to them. Mr Phoung Thuan Pham told the Tribunal that he was introduced to the Visa Applicant through friends and it was literally love at first sight. He said they were married on 11 July 1999 and had lived together as husband and wife for over eight months. He said he supported and loved her and he would miss her greatly if she was required to return to Cambodia. He said he would return to live with her in Cambodia if her visa application was not approved.

18. The migration agent assisting the Visa Applicant submitted that the Visa Applicant who does not speak or read English did not provide any false information or documents. She placed her trust and faith in her mother and the migration agent in Cambodia to complete the necessary documentation. He reiterated that it would be extremely unfair to blame the applicant for the actions of an agent whom she had paid to carry out work on her behalf but who has exceeded his authority by apparently providing the Embassy with false or inaccurate evidence in order to obtain a visa for the Visa Applicant. He stressed that the Visa Applicant is unlikely to ever repeat this conduct and urged the Tribunal to exercise its discretion and not to cancel the Visa Applicant's visa.

FINDINGS

19. The Minister may cancel a visa, pursuant to section 109 of the Act, if there has been a breach, albeit deliberate or otherwise, of provisions of the Migration Act. In this case, the Department cancelled the Visa Applicant's visa because of perceived breaches of sections 101 and 103 of the Act. These sections read:

Section 101. Visa applications to be correct

101. A non-citizen must fill in his or her application form in such a way that:

(a) all questions on it are answered; and

(b) no incorrect answers are given.

Section 103. Bogus documents not to be given

103. A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.

20. A 'bogus document' is defined at section 97 of the Act as:

in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a) purports to have been, but was not, issued in respect of the person; or

(b) is counterfeit or has been altered by a person who does not have authority to do so; or

(c) was obtained because of a false or misleading statement, whether or not made knowingly;

21. Section 109 of the Act provides for the circumstances where the Minister may or where he must cancel a holder's visa. That section is as follows:

Section 109. Cancellation of visa if information incorrect

109. (1) The Minister, after:

(a) deciding under section 108 that there was non-compliance by the holder of a visa; and

(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107 (1) (b); and

(c) having regard to any prescribed circumstances;

may cancel the visa.

(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

22. The prescribed circumstances referred to in subsection 109(1)(c) are listed in regulation 2.41. In this case the Visa Applicant's visitor visa was cancelled on the basis that she had not complied with sections 101 and 103 of the Act.

23. Section 111 of the Act provides that "To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent".

24. After taking into account all the written material on the files and the oral evidence given by the Visa Applicant, the Tribunal finds that the Visa Applicant did not comply with section 101 of the Act as she gave incorrect answers to questions 13,14,17 and 22 on the visa application Form 48R that she signed and forwarded to the Department on 12 May 1999. The Visa Applicant agreed with the Tribunal that the answers given to the above questions were incorrect. The Visa Applicant however claims that it was not her that provided the information nor did she complete the application. She claims it was her mother and the migration agent that were responsible for any incorrect information placed on the form and any false documents given to the Department. The Tribunal found the Visa Applicant's evidence implausible and particularly unconvincing when she claimed she could not remember specific critical dates, names and places. The Visa Applicant told the Tribunal she was 30 years of age, married and had worked as a sales assistant in a Jewellery shop for almost 3 years. The Visa Applicant however told the Tribunal she was not able to remember the migration agent's name even though she said she met him on three occasions. The Visa Applicant also told the Tribunal she was not able to remember the critical date of her divorce even though she claimed it took place in 1999. On balance the Tribunal is not satisfied that the Visa Applicant gave full and frank responses to questions put to her by the Tribunal. Although the Visa Applicant claims she did not complete the application and other forms and documents submitted, the Tribunal finds they contain information, which she would have provided. In Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 515; (1993) 45 FCR 570 the Federal Court noted in part at p.581 that:

"a person who adopts the answers placed on an application form by somebody else, intending that the person will submit the form to a person performing functions under the Migration Act, causes the answers to be made to that person."

Given that she signed the forms and documents she cannot now resile from their contents (see also Hsiao v Minister for Immigration, Local Government and Ethnic Affairs (1992) 36 FCR 330).

Further the Visa Applicant signed a Declaration on 12 May 1999 declaring among other matters, that the information supplied on her form was complete and correct. The Tribunal finds that the Visa Applicant did not comply with section 101 of the Act as she gave incorrect answers and accordingly the ground exists for the cancellation of her visitor visa.

25. In the material supporting the Visa Applicant's application for a visitor visa, two Australian Citizenship Certificates were provided to the Department. One Citizenship Certificate was for Ravy Ung, the Visa Applicant's sister and another Citizenship Certificate was for Chi Heang Heng, the Visa Applicant's brother in law. Both certificates claimed Australian Citizenship but the Department could find no record of either in the Citizenship database. The Visa Applicant told the Tribunal that her sister always lived in Cambodia and therefore that certificate of Australian Citizenship was clearly a bogus document under section 103 of the Act. The Tribunal finds that the Visa Applicant did not comply with section 103 of the Act as she gave or caused to be given a bogus document to the Minister and accordingly a further ground exists for the cancellation of her visitor visa.

26. The prescribed circumstances for the cancellation of the Visa Applicant's visa pursuant to section 109 of the Act are contained in Regulation 2.41 which provides as follows:

"2.41. For the purposes of paragraph 109 (1)(c) of the Act, the following circumstances are prescribed:

(a) the correct information;

(b) the content of the genuine document (if any);

(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

(d) the circumstances in which the non-compliance occurred;

(e) the present circumstances of the visa holder;

(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g) any other instances of non-compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non-compliance;

(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community."

27. The relevant policy is set out in the Migration Series Instruction ( MSI) 280. The policy directions in MSI 280 are a broad guide to decision-makers as to the type of matters that they should take into account when considering the criteria in the Regulations. The Tribunal has observed the policy guidelines to the extent that they are relevant to the instant case.

28. The correct information was that the Visa Applicant had left for Australia not on her honeymoon as stated on the visa application form but on her own. She did not have a sister, Ravy Ung living in Australia as shown on her application form nor was her sister an Australian citizen as shown on the bogus certificate of citizenship. The likely effect of this information was that the Visa Applicant would not have been granted a visitor visa by the Department pursuant to the Migration Act and Regulations. The Tribunal does not accept the Visa Applicant's evidence that she was merely an innocent bystander and that all the false information was provided by her parents, her mother in particular and the migration agent. She told the Tribunal in direct evidence that she knew one week after her marriage to her first husband that they did not love each other and there was conflict between them. This was well before she signed her visa application form and before she was interviewed by the Department. The Visa Applicant however chose to deliberately mislead the Department when applying for her visitor visa. The Visa Applicant then on arrival in Australia did not go to Sydney or New South Wales to visit friends or relatives as indicated on her visa application form but came to Melbourne. The Visa Applicant did not inform or advise the Department of the changes in her circumstances not did she advise the Department of the incorrectness of any answers that she became aware of on her application form. The Visa Applicant then on arrival in Australia on a visitor visa chose to remarry on 11 July 1999 and applied for permanent residence, the day after, on 12 July 1999.

29. The Visa Applicant is currently on a bridging visa and is living with her new husband Mr Phoung Thuan Pham in Springvale, Melbourne. The Visa Applicant told the Tribunal that she wishes to remain in Australia as her husband lives in Australia. She said that she could not return to Cambodia, as her family would not accept her as she has not talked to them. The Visa Applicant's husband Mr Phoung Thuan Pham told the Tribunal that he would return to live with his wife in Cambodia if her visa application was not approved. The Visa Applicant told the Tribunal that this was her first trip to Australia and that she had no family or relatives in Australia. There is no evidence that the Visa Applicant has breached the law since her non-compliance nor of any previous visa cancellations. There is no evidence that the Visa Applicant has made any contribution to the community. After considering all the circumstances the Tribunal finds that the reasons for not cancelling the Visa Applicant's visa do not outweigh the reasons for cancelling the visa.

CONCLUSION

30. Taking all relevant matters into account, the Tribunal concludes that the exercise of the discretion in this case is not appropriate.

DECISION

31. The Tribunal affirms the decision under review to cancel the Short Stay (Visitor)(Class TR) visa, subclass 676 granted to the Visa Applicant.

I certify that this and the preceding pages are a true copy of the Statement of Decision and Reasons.

Dated: 16 August 2000 for Deputy Registrar