Abdul-Kader and Minister for Immigration and Multicultural Affairs
[2000] AATA 1055
•30 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1055
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/589
GENERAL ADMINISTRATIVE DIVISION )
Re MARWA ABDUL-KADER
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr B.J. McMahon (Deputy President)
Date30 November 2000
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent with a direction that the application for the visa under review is not to be refused under section 501 of the Migration Act 1958.
..............................................
BJ McMahon
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – whether failure to pass the character test – Protection Visa application – visa applicant did not meet criteria for refugee status – whether claims made by visa applicant were false – no evidence of false claims – visa applicant not of bad character.
Migration Act 1958 – ss 499, 501
REASONS FOR DECISION
30 November 2000 Mr BJ McMahon (Deputy President)
This is an application to review a decision of 28 February 2000 by a delegate refusing an application for a Spouse Visa by Yahya Abdul-Kader, the husband of the above applicant.
The basis for the decision was set out in reasons attached to a letter addressed to Mr Abdul-Kader. The relevant part of the reasons is at follows (T documents page 243):
"As a delegate of the Minister, and having considered all the details of Mr Yahya Abdul-Kader's, (the Applicant), history with the Australian Department of Immigration and Multicultural Affairs, (the Department), since 1995, I am satisfied he comes within the scope of Section 501 of the Migration Act. This is based on the following facts, that since his arrival in Australia on 4 September 1995 the Applicant:
·on 30- August 1996 lodged a Protection Visa application in Australia based on false claims
·on 13 June 1997 this Protection Visa application was refused. The Applicant then lodged an application for review on 30 June 1997 with the RRT. A review application that was also based on the same false claims
·on 11 May 1998 this review application was refused. The Applicant then sought Ministerial Intervention on 4 June 1998; again this Intervention was based on the above same false claims as his previous Protection Visa and RRT applications
·when the Minister did not consider this intervention on 26 October 1998 the applicant joined class action against the Department. This was again based on his original false claims.
Over a period of three years the Applicant has shown little regard for the truth or for Australian law. I therefore find that over a period of five years, on an aggregate of behaviour, the Applicant comes within the parameters of section 501 2(a)(ii)."
There is no subparagraph (ii) as referred to in the last paragraph of the reasons which I have quoted above. The decision-maker appears to have intended to refer to a combination of subsection 501(2) and subparagraph 501(6)(c)(ii) of the Migration Act 1958. The basis of the decision therefore appears to be that Mr Abdul-Kader does not pass the character test, having regard to his past and present general conduct.
The application of the character test is governed by Direction 17, issued by the Minister pursuant to section 499. The only part of that Direction relied upon by the Respondent to establish that Mr Abdul-Kader did not pass the character test, is to be found in paragraphs (b) and (c) of paragraph 1.9. These are matters which a decision-maker is to consider when determining whether or not a non-citizen is of good character. Those paragraphs are as follows:
"(b)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;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;"
In short, the decision-maker has alleged that the visa applicant made "false claims" and persisted with them throughout an appeal process. The use of this term "false claims", I understand to mean lies. The decision-maker has alleged, therefore, that the visa applicant made false statements of fact, knowing them to be false, with the intention to deceive. In my view this has not been established by the evidence.
The delegate has relied upon an account of an interview, given in a so-called case dump, by an interviewing officer following the application for the Spouse Visa. The officer recorded the following (T documents page 227):
"Ap went as a visitor29081995 for 3 months only. The purpose of his visit was to attend the wedding of his sister's wedding. He initially renewed his visitor visa for a further 3 months and at the end of the 3 months he renewed it for a further 6 months.
He said that knowining that he was no longer able to renew his visitor visa. He claims that the family's account Milad Habib (but he is know as Chris Habbib), told the applicant that the only way he could stay in Australia is by lodging a refugee application. He claims that Mr. Habib who also works in Legal firm, came in to the applicant's house and completed all the necessary forms. He claims that Mr. Habib completed all the necessary forms without asking the applicant for any furhter information in relation to the refugee application. The applicant said that all the accountant was interested in knowing was the fact that the applicant wanted a way where he could stay in Australia legally. the applicant admitts that he had no basis for the refugee application and was merely a deliberate attempt to Australia for a further period of time. The applicant said that he never saw the solicitor who lodged the refugee application, he said that the accountant collected from him about $2900.00. The refugee application was refused by MIRO, RRT and the Federal Court. The applicant then approached a solicitor and Migration Agent Mr. Sam Issa who also was aware of the applicant's unfounded refugee claim. Sam Issa suggested prepared submissions to the Minister asking for the Minsister's intervention."
The officer was not called to give evidence by telephone. One can only take the account of the interview as he has recorded it. Mr Abdul-Kader gave evidence by telephone and I asked him about this conversation. He denied that he had ever said to the officer that he had lied in his refugee application. He agreed that he made the refugee application in an endeavour to obtain legal permission to remain in Australia. What Mr Abdul-Kader said in evidence is not inconsistent with what the officer recorded. The fact was that the application for a Protection Visa was ultimately rejected by the Refugee Review Tribunal because the reasons given did not amount to convention reasons. It is accurate therefore to say that Mr Abdul-Kader had no basis for the refugee application because the Tribunal so found. In this account of the interview, there is only one alleged "admission", namely that there was no basis for the refugee application. The visa applicant agrees that he said this. It is a considerable jump, and an unwarranted assumption, to say that on this account the claim for a Protection Visa was falsely based.
Mr Abdul-Kader came to Australia on 4 September 1995, on a visitor's visa for three months, in order to attend his sister's wedding. As the interviewing officer noted, he renewed his visitor's visa for two further periods. He was unaware that his personal circumstances might have entitled him to apply for a Protection Visa. After discussing it with members of his family and their professional advisers, he concluded that he did have such grounds.
He had what he referred to as "some problems" in Lebanon and, for that reason, he did not wish to return. Furthermore, his father died while he was in Australia. Whereas Mr Abdul-Kader had relied on his father in certain troubles in the past to help him escape, this protection was now no longer available to him. He was all the more determined, therefore, to stay in Australia.
He had been detained on a number of occasions and had been imprisoned in Lebanon. When released with the help of his father, he went to Cyprus. As he was unable to enter that country, he returned, obtained a passport and left for Australia.
When contemplating his application for a Protection Visa he consulted Mr Habib, the family accountant. Mr Habib interviewed him at his home and took notes as Mr Abdul-Kader spoke. Mr Habib then said he would take the notes to a solicitor, who would fill out the form which Mr Abdul-Kader had signed and that the solicitor would lodge the application for the Protection Visa. Mr Abdul-Kader did not receive a copy of the final application.
He was notified that the application had been refused and, on the solicitor's advice, he appealed to the Refugee Review Tribunal (RRT).
There he was unrepresented. However, unlike many applicants who come before this Tribunal in section 501 cases, Mr Abdul-Kader attended at the RRT, gave evidence and was cross-examined on the reasons he gave for leaving Lebanon.
The RRT summarised the facts in his primary application, the corrections that he made in his evidence and the evidence that he gave to that Tribunal, in these terms (T documents page 144):
"In his primary application, the applicant stated that he left Lebanon because he feared imprisonment and perhaps even for his life because of his religion and because of his outspoken political opinion against the 'Maronite government'. He stated that the Syrian army accused him of being a member of the Hizbollah which was untrue. He believes they formed this opinion because he was 'set up' due to his Sunni Muslim background. He states that he was questioned by Syrian soldiers and by the 'secret police' on 'a number of occasions' and he was accused by them of spying for the Hizbollah. When he denied any such involvement he was threatened 'with life in prison' until he cooperated with them. He was only released when his family paid bribes to the secret police. He states that the majority of Christians in his area were 'against me' because he had demonstrated against the government 'which had a Maronite president'. He believes that since Muslims are in the majority in Lebanon, Muslims should have a greater say in the government and should fill the role of president. He says should he return he fears persecution by his enemies in Syr in north Lebanon. His family has recently phoned him to warn him that the Syrian secret police were still seeking him as he is a 'wanted man'. In such a case he fears he could 'disappear' as have many others.
At the hearing he corrected some of the above details which he stated were wrong since someone else had helped him prepare his application and the details were put down incorrectly. He stated that his difficulties were with the Tawheed, or Islamic Unification Movement, rather than the Hizbollah.
His evidence at the hearing was as follows. He stated that he came from Tripoli, an area of North Lebanon that was formerly under control of the Tawheed movement. He stated he was a carpenter working there and he also helped his father run a shop. The Tawheed members used to come and buy from the shop. He stated Syrian intelligence came to 'clean up' the Tawheed movement and the Syrians accused the applicant of passing information to the Tawheed and of being a member of the Tawheed movement. He was taken by the Syrians for interrogation twice. The first occasion was in late 1993 or early 1994 and he was held for two days. The second occasion was in June 1995 when he was held for one day. He stated that on each occasion his father secured his release through bribes. He stated he left the area where he lived after the second occasion and lived with his niece nearer Beirut. He stated that he was able to hide for a few months until he could leave for Australia but he could not have stayed hidden from the Tawheed and the Syrians much longer than that. He stated the Tawheed threatened his father because they believed the applicant had informed the Syrians of Tawheed activities. He stated the Syrians were also pursuing him and so his father arranged his safe exit through the airport by bribing airport officials. He stated that subsequently he has learnt from relatives that the Tawheed are still seeking him. He stated his father has since died and therefore can no longer help him through bribes if the applicant were detained by the Syrians. He stated his father had also been detained by the Syrians twice, each time for one day."
The principal alteration to the account given in the primary application was the identity of the group with which he was said to be associated. It was not Hizbollah but the Tawheed movement. Mr Abdul-Kader gave evidence to this Tribunal by telephone. Whilst he refused to discuss matters relating to the Syrian secret police and to the Tawheed movement, because he feared that he might be overheard, he gave specific evidence in relation to all the other matters contained in the above summary. He had been arrested and taken into custody as outlined. He had been interrogated. His release had been secured through bribes by his father. He was in fear of the Tawheed and, when he left, was still of the view that this movement was seeking him. His father had also been detained by the Syrians. In short, Mr Abdul-Kader did not resile from anything said in his primary application or in his evidence before the RRT, except for the identity of the resistance movement. I have no reason to reject this evidence. Certainly, no evidence to the contrary was tendered by the Respondent.
As I have said, the application for the Protection Visa was refused by the RRT because it was not satisfied that Mr Abdul-Kader faced a real chance of persecution, either by the Syrians or the Tawheed, for a convention reason.
There is a reference in the section 37 documents to a further application to the Minister. Mr Abdul-Kader said that, at the suggestion of his family, he had gone to a solicitor named Sam Issa, who prepared this application. For some reason, this document has not been included in the section 37 documents, although there is a statutory declaration by Mr Abdul-Kader, made on 29 December 1999, in these words (in translation):
"I went to the lawyer Sam Issa to help me stay with my family in Australia after my father's death. And I did not know what the lawyer wrote in my application until directly before the court interview. Then I discovered that Sam Issa had taken money from me and wrote false information in my application and deceived me."
It is not clear whether this refers to the original Protection Visa application or to the application to the Minister. If it refers to the original visa application, the only mistake identified is the identity of the resistance movement which could have been wrongly transcribed or assumed by the accountant, Mr Habib. If it relates to the application to the Minister, the letter requesting the Minister's consideration has not been reproduced and it is not possible to say whether it contains any inaccuracies. There is no evidence before me to suggest that it did. The decision-maker appears to have assumed that ministerial intervention was sought on the basis of false claims. I have no evidence of that. If they are the same claims that were made in the primary application, then they are not false, merely insufficient at law to ensure success.
The fact that an applicant is unsuccessful in his application for a Protection Visa, is no reflection on his character, provided he tells the truth. The fact that he sees the exercise of his supposed legal rights as a way of staying in Australia, is not inconsistent with good character, provided he tells the truth. I am satisfied that the truth has been told and that there is therefore no basis for the somewhat exaggerated language of the delegate. The decision under review rests on a misunderstanding of notes in a case dump. The evidence before me indicates that it cannot be supported.
A good deal of evidence was given by the Applicant and by members of her family. A good deal of documentary evidence, as to character and other relevant matters, was tendered. All this material went to the question of whether the Minister's discretion should be exercised in the Applicant's favour. In my view, the question does not arise because it has not been shown that the visa applicant did not pass the character test.
The only allegations made against Mr Abdul-Kader are that he made false statements in his Protection Visa application and in evidence he gave before the Refugee Review Tribunal. In my view, this has not been established. When he returned to Lebanon on 27 June 1999 with his wife, she continued to live there for nine and a half months before returning to Australia in order to conduct these proceedings. Mr Abdul-Kader of course remains in his village and works as a jobbing carpenter. His evidence was that conditions had substantially improved since his return, as the area of Syr in which he lives is no longer under the control of the Tawheed movement. Lebanese groups now control this area. Although he is occasionally stopped and interrogated, life is much better now that the political situation has changed. This fact does not indicate to me that he did not genuinely hold the fears which he expressed when he was in Australia between 4 September 1995 and 27 June 1999.
Those fears may not have been sufficient to constitute persecution for a convention reason. Nevertheless, they were honestly expressed. On the evidence before me, there was no attempt to deceive either the Department or the Refugee Review Tribunal or, for that matter, the Minister. As this is the whole basis upon which the Respondent made the decision to withhold the Spouse Visa, the decision under review must be set aside. The matter is remitted to the Respondent with a direction that the application for the visa under review is not to be refused on section 501 grounds.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed: .....................................................................................
Dominika Rajewski, AssociateDate/s of Hearing 20-21 November 2000
Date of Decision 30 November 2000
Solicitor for the Applicant Mr Fahmi Hussain
(Barclay Benson Lawyers)
Solicitor for the Respondent Ms Susan Fraser
(Australian Government Solicitor)
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