Abboud and Minister for Immigration and Multicultural Affairs - [2001] AATA 909

DECISION AND REASONS FOR DECISION [2001] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/24

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Mirna Abboud
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date2 November 2001
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to refuse the grant of a visa under s 501(1) of the Migration Act 1958 should not be exercised in the case of Nabil Abboud.

..............................................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – Spouse Visa – character test – past and present general conduct –- migration agent assisted Visa Applicant in application for protection visa in which false and misleading statements were made – migration agent subsequently found guilty of fraudulent and criminal conduct – Visa Applicant perpetuated false statements in application for protection visa - not of good character
Exercise of discretion – balancing of primary and other considerations - seriousness of the offence – risk of recidivism – general deterrence – expectations of the Australian community – best interests of the child – genuineness of the marriage – hardship caused

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

Mr R P Handley

This is an application by Mirna Abboud (the "Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the "Respondent") made on 28 November 2000 to refuse the grant of a sub-class 309 spouse visa to the Applicant's spouse, Nabil Abboud (the "Visa Applicant"). At the hearing the Applicant was represented by Ron Kessels, Solicitor, and the Respondent was represented by Paul Hardman, Solicitor of Clayton Utz, Lawyers. The evidence before the Tribunal comprised the documents produced pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (the "T documents"), together with the documents tendered by the parties. Oral evidence was given by the Visa Applicant by telephone and by the Applicant in person.
BACKGROUND

The Visa Applicant, Mr Abboud was born in Lebanon on 3 April 1968 and is aged 33. He first came to Australia in 1984 at the age of 14 and lived with his brother and family. He returned to Lebanon in 1986 but eight or nine months later went to Lagos, Nigeria where he lived until 1993, working as a mechanic. When he returned to Lebanon in 1993, he worked as a self-employed motor mechanic until he travelled to Australia, having been granted a visitor's visa on 26 October 1995. He arrived in Australia on 10 December 1995 and was granted permission to stay for three months. This permission was later extended to 12 months.
On 28 November 1996, Mr Abboud's application for a protection visa was lodged, with the assistance of Abelardo Miranda, an employee of Davidson James & Associates, Solicitors and Attorneys and Licensed Migration Agents. On 4 June 1997, Mr Abboud's application was refused. On 7 July 1997 and 9 July 1997, applications for review of this decision were lodged with the Refugee Review Tribunal ("the RRT"). Mr Abboud chose not to attend the RRT for a hearing and, on 12 May 1998, the RRT affirmed the original decision. After notification of this decision, Mr Abboud appears to have applied to the Minister for intervention under s 417 of the MigrationAct 1958 ("the Act"), which was refused on 3 November 1998.
A second application for ministerial intervention under s 417 was lodged on Mr Abboud's behalf by Simon Diab of John H Maait & Co Solicitors by letter dated 4 February 1999. This application was also refused, on 6 May 1999. On 20 April 1999, Mr Abboud applied for a Bridging Visa E which was granted, permitting Mr Abboud to remain in Australia until 30 May 1999. On that day, Mr Abboud departed Australia for Lebanon. On 7 June 1999, he applied for migration under the Concessional Family visa class.
Mrs Abboud was born in Lebanon on 27 May 1973 and is aged 28. She migrated to Australia with her family in January 1990. Mrs Abboud is an Australian citizen. After finishing High School, she completed a Bachelor of Arts in languages at the University of Western Sydney and, subsequently, a Post Graduate Diploma in Special Education at Macquarie University. After completing the assessment for her Diploma in about November 1999, Mrs Abboud travelled to Lebanon for a holiday. She met Mr Abboud at a family gathering in Lebanon in about February 2000 and, on 15 March 2000, they announced their engagement. They were married in Sakhra, Lebanon on 30 April 2000. Mrs Abboud gave birth to their daughter, Sarah, on 3 August 2001.
On 25 May 2000, Mr Abboud advised the Australian Embassy in Beirut that he wished to withdraw his application for migration under the Concessional Family visa class. On 5 June 2000, Mr Abboud lodged an application for a spouse visa. On 24 October 2000, he was interviewed at the Australian Embassy in Beirut by the Principal Migration Officer and, on 28 November 2000, that officer, acting as a delegate of the Respondent, decided to refuse Mr Abboud's application for a spouse visa on the ground that he did not pass the "character test" as a result of his past and present general conduct. On 8 January 2001, Mrs Abboud lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW AND POLICY
Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the "character test". The "character test" is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Abboud does not pass the character test having regard to his past and present general conduct. If the Tribunal decides he does not pass the character test, it must exercise the residual discretion under under s 501(1) to decide whether, nonetheless, not to refuse to grant a visa to Mr Abboud.
ORAL EVIDENCE
Nabil Abboud (the Visa Applicant)
Mr Abboud said he came to Australia in 1984 at the age of 15 and lived with his brother and family. He stayed in Australia for nearly three years, initially, going to a school to learn English, and then to High School. He returned to Lebanon in 1986, and, about eight or nine months later went to Lagos, Nigeria where he stayed with his brother and obtained work as a mechanic.
Having been granted a visitor's visa, Mr Abboud arrived in Australia for a holiday on 10 December 1995, staying with his brother and family. Initially, he was granted permission to stay for three months but this was subsequently extended to 12 months. He was told by a friend about a lawyer and migration agent, called Abelardo Miranda who could help obtain permanent residence for him. He liked it in Australia so he went to see Mr Miranda. Mr Miranda asked for an up front payment of $3,000 at their first meeting. The next time Mr Abboud saw him, Mr Miranda had completed application forms which he asked Mr Abboud to sign. Mr Abboud did not understand the nature of the application and did not read the forms. He just signed them. He acknowledged that at that time he could read English but not perfectly. Mr Miranda did not explain that what Mr Abboud was signing was an application for refugee status. At their first meeting, Mr Miranda had asked Mr Abboud where he lived in Lebanon and about his work as a mechanic in Nigeria. However, the reasons given in the application form for Mr Abboud's claiming to be a refugee were invented by Mr Miranda and untrue. Mr Abboud acknowledged that he was not a refugee. Mr Miranda advised Mr Abboud to obtain Australian recognition of his skills as a mechanic. When he did not pass the requisite certification test, he commenced a TAFE program in order to obtain his certificate. As part of this program, he completed about a month's work as a motor mechanic. This was the only work he did in Australia. After he had obtained permission to work, he looked hard for a job but was unable to find one.
Mr Abboud said whenever he received any correspondence from the Department about his application, he handed this to Mr Miranda's secretary. He had to deal with his secretary because it was very difficult to get an appointment to see Mr Miranda and then often only for a few minutes. Even then, Mr Miranda would not usually listen to him. Mr Abboud had no specific recollection of receiving a letter dated 4 June 1997 refusing his application for a protection visa (T7). He said he did not think that on receipt of that particular letter he had realised the nature of the application which Mr Miranda had made on his behalf. It was only later, when this was explained to him by a friend, that he realised what had happened. Mr Abboud said that if Mr Miranda had explained the nature of the application he was making on his behalf, he would not have applied for refugee status because this was not the truth. He was not a refugee. But Mr Miranda did not tell him the nature of the application.
When a friend did explain to him about it being a refugee application, Mr Abboud tried to phone Mr Miranda to ask him about this but could never get to speak to him despite trying on many occasions. Mr Abboud also denied that he had personally lodged the protection visa application with the Department with the fee for $30 and obtained a receipt dated 28 November 1996 (T6, p70). Mr Abboud said he knew nothing about the receipt. Mr Miranda did everything that was necessary and Mr Abboud did not pay a separate fee of $30 in order to lodge the form.
When Mr Abboud's application was refused, Mr Miranda asked him for a further $1,000 which he said was for court fees. He remembered receiving a letter from the RRT inviting him to attend a hearing but when he took this letter to Mr Miranda, Mr Miranda advised him not to worry and that he need not go. Mr Abboud did not, therefore, attend. He later discovered that Mr Miranda did not pay the $1,000 to the RRT.
Mr Abboud was not clear as to exactly when Mr Miranda had lodged the protection visa application. When a friend explained the nature of the application to Mr Abboud, he was scared of informing the Department that he was not in fact a refugee. At the time, he was studying at TAFE and he thought if he told the Department, they would ask him to leave the country. He believed Mr Miranda's advice that for him to stay in Australia it was necessary for him to obtain a certificate recognising his skills as a mechanic.
After Mr Miranda disappeared in about May/June 1998, Mr Abboud went to see Simon Diab, a solicitor/migration agent at Parramatta. Mr Diab advised him to write a letter to the Minister seeking ministerial intervention in order that Mr Abboud could obtain a visa. Ultimately, Mr Abboud applied for ministerial intervention on two occasions. It was on the basis of the second application that Mr Abboud applied for a Bridging Visa E, which enabled him to stay in Australia until the date arranged for his flight to Lebanon. Mr Abboud said he left Australia in order to do the right thing. He was aware that Mr Miranda had done something wrong and had said things that were not true, so he returned to Lebanon and lodged his Concessional Family visa application there, although Mr Diab had helped him to complete the form while he was still in Australia.
Mr Abboud has one brother in Australia and two sisters and his parents in Lebanon. He is not currently working. He met his wife for the first time in Lebanon in about late 1999. He had not met her previously in Australia. He last saw her when she visited him for a month at Easter. She has sent him photos and a video of their daughter. He said he finds their separation very hard, and it is particularly hard for his wife whom he is unable to support. If he is allowed to come to Australia, his wife's brother has said he will employ him as a mechanic in his panel beating business. Mr Abboud is aware how close his wife is to her family and would like to rent a house near their home. He knows that she does not wish to live in Lebanon. He concluded by saying that he is very sorry for any mistake which he made, but asked that his family be allowed to reunite.
Mirna Abboud ("the Applicant")
Mrs Abboud attested to the truth of her statutory declaration dated 22 May 2001 (A4). She said she lives with her parents and her two older brothers. Her brother Elias owns the house. He also owns a specialist panel beating and spray painting business at Granville. lf her husband is permitted to come to Australia, Elias is happy for them to live in the house. However, Mrs Abboud would prefer that they rent a small house nearby. Elias has also said he will employ Mr Abboud as a mechanic in his business. He plans to expand his business to include a mechanical section and he will employ Mr Abboud to undertake this work.
Mrs Abboud said her daughter was born on 3 August 2001. At the suggestion of her husband, they have called her Sarah, after Mrs Abboud's mother. She has sent her husband photos and a video tape taken around the time of Sarah's birth. She communicates with her husband by phone and mail. Mrs Abboud said her husband always asks about Sarah when they talk on the phone, and it is very hard for him not to be here with them. It is also very hard for her not to have her husband's support. Even though she has the support of her family, sometimes she gets angry when Sarah cries. She and her husband have discussed Sarah's future on the phone. They want her to go to a Catholic school and every week they intend taking her to church.
Mrs Abboud said that if her husband is not permitted to come to Australia, she will not go to Lebanon to live. She wants to remain in Australia because she is concerned about her daughter's future and, in particular, because the health care system is much better in Australia. After Mrs Abboud completed her Graduate Diploma in Special Education in November 1999, she travelled to Lebanon for a holiday and remained there for eight months, during which time she met her husband and they married. She said she does not want her child to grow up in that environment.
SUBMISSIONS
The Applicant
Mr Kessels, for the Applicant, noted that Mr Miranda had completed and lodged the forms for Mr Abboud's application for a protection visa. Mr Abboud relied on Mr Miranda and was not aware that the application being submitted was for a protection visa. Mr Kessels referred the Tribunal to the remarks of Judge Shadbolt in the NSW District Court on 9 May 2001 (R1), on sentencing Mr Miranda to three years and ten months imprisonment for offences under the Migration Act. Mr Kessels said the counts on which Mr Miranda was convicted involve similar scenarios to that in the current matter, with Mr Miranda including false statements of persecution by his clients in their countries of origin, together with other incorrect information concocted by Mr Miranda.
Mr Kessels said Mr Abboud had maintained his version of events under cross-examination: that he was unaware that Mr Miranda was submitting an application for a protection visa on his behalf, and that it contained false information and claimed that he was a refugee. Mr Abboud vehemently denied that he personally lodged the application with the fee of $30 for which a receipt was issued in his name (T6, p70). Mr Abboud said all this had been done on his behalf by Mr Miranda and he had not paid a separate fee of $30. Mr Kessels said no evidence had been produced as to the Department's procedure in respect of the issue of receipts and the fact that Mr Abboud's name was inserted on the receipt did not indicate that he personally lodged the application. Mr Abboud admitted that he did later become aware that it was a protection visa application and did not, at that time, tell the Department that it was false. Mr Abboud acknowledged that he was wrong not to have done so, but he said that he was scared that he would be forced to leave the country before he had completed his TAFE course and obtained his certificate for registration as a motor mechanic. Mr Miranda had advised him that it was important for him to obtain this certificate in order for him to remain in Australia.
With regard to the guidance provided in Direction No. 21 when considering whether a person is not of good character, Mr Kessels noted that countervailing factors must also be taken into consideration, as was recognised by the Tribunal in ReLeyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551. In the present case, the countervailing factor is Mr Abboud's being misled by Mr Miranda, a person who has subsequently been found to have been engaged in systemic fraud and criminal conduct for which he is now serving a term of imprisonment. Mr Kessels submitted that, bearing in mind the protection visa application was lodged approximately five years ago, Mr Abboud should now be found to pass the character test. Alternatively, Mr Kessels submitted that the Tribunal should exercise the discretion under s 501(1) of the Act.
Mr Kessels said that, unlike in many cases, Mr Abboud did not seek to obtain a benefit from the fact that he has previously been to Australia and made an application for a protection visa. He met Mrs Abboud for the first time then she went to Lebanon for a holiday, at a time when he had made an application to migrate to Australia on the basis of his skills as a mechanic.

With regard to the primary consideration of the best interests of the child, Mr Kessels noted that Mr Abboud has taken a keen interest in his daughter and her upbringing in which Mrs Abboud has sought to involve him notwithstanding the problems caused by their present separation. It is clearly in the child's best interests for her to be brought up by both parents. If Mr Abboud is not granted a visa, this will mean the long term separation of the child from her father, since Mrs Abboud will not go to Lebanon to live. The hardship to Mrs Abboud caused by the separation from her husband, which is categorised as an "Other Consideration" under Direction No. 21, will also impact on their child. Mr Kessels referred the Tribunal to the medical report dated 13 July 2001 (A7), which describes the medical condition that Mrs Abboud has been suffering and the impact it may have on her child. The effect of this medical condition will be significantly ameliorated by the presence of Mr Abboud.
Mr Kessels noted that if Mr Abboud is permitted to come to Australia, he and his wife have decided to live close by her family and that her brother has offered Mr Abboud employment as a motor mechanic in his business. Mr Abboud has already obtained certification as a mechanic when he was last in Australia.
With regard to the requests made on Mr Abboud's behalf for ministerial intervention, Mr Kessels said it is a lawful entitlement of a person about whom a decision has been made, to seek ministerial intervention, and no inference should be drawn from the fact of Mr Abboud having done so.
The Respondent
Mr Hardman, for the Respondent, rejected the Applicant's contention that there are countervailing factors in this case. He said Mr Abboud had permitted the continuation of a fraud to enable him to remain in Australia and this undermined any possibility of his passing the character test. Mr Hardman argued that Mr Abboud's evidence was equivocal or deliberately evasive in relation to the lodging of the protection visa application and as to the time when he became aware of the true nature of this application. Mr Hardman noted that the letter notifying Mr Abboud of the refusal of his application for a protection visa dated 4 June 1997 (T7), was received by him almost a year before his being notified of the RRT decision dated 12 May 1998 (T8). Mr Abboud had acknowledged that he had received and opened the letter dated 4 June 1997 and Mr Hardman submitted the Tribunal should infer that he must have read the letter and understood that it related to an application for a protection visa. Similarly, Mr Hardman noted that the receipt issued by the Department on the lodging of the protection visa application was in Mr Abboud's name (T6, p70).
Mr Hardman contended Mr Abboud had permitted the continuation of a fraud for a period of at least 12 months noting that he did not consult Mr Diab of John H Maait & Co., Solicitors, until after notification of the RRT decision. Thus, there were no countervailing factors because Mr Abboud did not inform the Department when he became aware that his protection visa application was not legitimate. Mr Hardman also noted that Mr Diab applied for ministerial intervention under s 417 on Mr Abboud's behalf. Section 417 requires that it is in the public interest to substitute a more favourable decision. By seeking ministerial intervention, Mr Abboud's legal representative was still seeking to benefit from the refugee application.
Mr Hardman said perpetuating a fraud or false representation is a serious matter and Mr Abboud should have been forthright in informing the Department that he was not a genuine refugee, at least prior to the RRT review. In relation to the exercise of the discretion under s 501(1), Mr Hardman contended that most weight should be given to the seriousness of Mr Abboud's misconduct, which he said outweighed the "Other Considerations".
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Abboud passes the "character test" having regard to his past and present general conduct. The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry.
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Abboud does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(b), which directs the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement.
The Tribunal finds, relying on Mr Abboud's evidence and the comments of Judge Shadbolt in R v Abelardo Miranda (9 May 2001, R1), that Mr Abboud was not aware when he sought Mr Miranda's assistance in obtaining permanent residence, that Mr Miranda would make an application for refugee status on his behalf. Mr Abboud told the Tribunal and the Tribunal accepts his evidence that he would not have made such an application had he known of this, because he did not consider himself a refugee. The Tribunal finds that the claims of persecution set out in the protection visa application lodged on behalf of Mr Abboud were concocted by Mr Miranda in the same way that he concocted stories of persecution in relation to the sixteen counts on which he was convicted under the Migration Act. However, while Mr Abboud was not initially aware of the nature of the application that had been lodged on his behalf, he became aware of this before the RRT conducted their review of the decision to refuse his application. Mr Abboud's evidence was that he became aware of this when discussing his application with a friend. Presumably, this occurred at some time after the application was refused by the Department on 4 June 1997 and before the RRT review on 12 May 1998.
Mr Abboud explained that once he became aware of the true nature of the application, he did not inform the Department that he was not a refugee and that the application was false, because he was scared of being asked to leave the country at a time when he was studying for his motor mechanic's certificate at TAFE. While the Tribunal acknowledges Mr Abboud's motive for not informing the Department, nevertheless, by not doing so he permitted the perpetuation of the false statements contained in his protection visa application.
The Tribunal finds there is no other evidence to indicate that Mr Abboud is not of good character. Indeed, the evidence of Mrs Abboud and the statutory declarations sworn by her mother, Sara Salman (A5), and brother, Elias Salman (A6), attest to his good character. The Tribunal was also impressed by the forthright way in which he gave oral evidence. Therefore, the question for the Tribunal is whether, in the particular circumstances of this case, Mr Abboud's permitting the perpetuation of the false statement in his protection visa application is sufficient to persuade the Tribunal that he does not pass the character test. The Tribunal notes that Mr Abboud's motivation in permitting the perpetuation of the false statement could be considered a countervailing factor. However, the Tribunal is not persuaded that this is sufficient to countervail the perpetuation of the false statement. Thus, on the basis of the guidance provided by paragraph 1.9 of Direction No. 21, the Tribunal finds that Mr Abboud does not pass the character test. Having so determined, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether, notwithstanding, not to refuse the grant of a visa to Mr Abboud.
In exercising this discretion, the Tribunal had regard to Part 2 of Direction No. 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

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.

With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a)       the seriousness and nature of the conduct;
(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).

Examples of offences which are considered by the Government to be serious include serious crimes against the Migration Act 1958 which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
With regard to this first primary consideration, the Tribunal has found that Mr Abboud perpetuated a false statement in connection with his application to remain in Australia, a matter which is regarded as serious by the Australian community. The Tribunal notes the mitigating circumstances of the fraudulent activity by Mr Miranda and Mr Abboud's motivation in seeking to complete his TAFE course in order to obtain his motor mechanic's certificate, which he had been advised by Mr Miranda was necessary to secure his visa. In the Tribunal's view, there is little likelihood that such conduct will be repeated and the deterrent effect of a refusal of a visa would be minimal in the particular circumstances of this case which involved the fraudulent activity of a person holding himself to be a migration agent.
The second primary consideration is the expectations of the Australian community. Paragraph 2.12 states that there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal's view, the particular circumstances of Mr Abboud's case would be looked at sympathetically by members of the Australian community, involving as it did a fraudulent migration agent, taking advantage of vulnerable people, charging exorbitant fees and concocting false statements, thereby, as Judge Shadbolt recognised, jeopardising their prospects of success with the Department.
The third primary consideration is the best interests of the child. Paragraph 2.15 states that in "general terms, the child's best interest will be served if the child remains with its parents". While in this case, Mr Abboud has not had the opportunity to establish a close relationship with his two month old daughter, whom he has not yet seen, nevertheless, the Tribunal finds, on the basis of Mr and Mrs Abboud's evidence, that he has a strong desire to establish a close parental relationship and that it would be in the best interests of the child to permit this to occur. The Tribunal also notes the medical condition affecting Mrs Abboud may be exacerbated by further separation from her husband and that this condition may impact on her relationship with their daughter.
With regard to the "Other Considerations" to which a decision-maker is directed by Direction No. 21, paragraph 2.17 states that, where relevant, "it is appropriate that these matters be taken into account, but that generally they be given less individual weight than that given to the primary considerations". These "Other Considerations" include the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family, the non-citizen's business and other ties to the Australian community, genuine marriage to an Australian citizen, the degree of hardship caused to immediate family members in Australia, the family composition of the non-citizen's family, both in Australia and overseas, and any evidence of rehabilitation and any recent good conduct.
There is no dispute that Mr and Mrs Abboud have a genuine marital relationship. Mrs Abboud is an Australian citizen, who was brought up and educated in Australia and wishes to remain here and has said she will not go to Lebanon in order to live with her husband. Apart from his wife and daughter, Mr Abboud has a brother living in Sydney, a brother living in Nigeria, and his parents and two sisters live in Lebanon. Mrs Abboud's parents and two brothers, with whom she has a close relationship, are Australian citizens and live in Sydney. Mrs Abboud has a medical condition which is exacerbated by the absence of her husband.
Given the circumstances relating to the lodging of Mr Abboud's protection visa application and the false statements therein, of which Mr Abboud was initially unaware, concocted by a person who is now serving a term of imprisonment as a result of his conduct in making similar protection visa applications, in the Tribunal's view, a weighing of the primary and other considerations leads to the conclusion that the discretion not to refuse the grant of a visa should be exercised in Mr Abboud's favour. The Tribunal had particular regard to the best interests of Mr and Mrs Abboud's daughter, Sarah, to the effect of a continuing separation on Mrs Abboud, and to the hardship which would otherwise be caused to all those principally involved. The Tribunal also noted other evidence as to Mr Abboud's good character and that he, in other respects, complied with Australia's immigration requirements. The Tribunal has therefore determined that the decision under review should be set aside and the matter remitted to the Respondent with the direction that the discretion, to refuse the grant of a visa to Mr Abboud under s 501(1), should not be exercised.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing   25 October 2001
Date of Decision   2 November 2001
Solicitor for the Applicant          Mr R Kessels, Ron Kessels Solicitors
Solicitor for the Respondent    Mr P Hardman, Clayton Utz Lawyers