Abou Serhal and Minister for Immigration and Multicultural Affairs
[2001] AATA 795
•19 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 795
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1613
GENERAL ADMINISTRATIVE DIVISION )
Re BERNADETTE ABOU SERHAL
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal J Block, Deputy President
Date19 September 2001
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the Direction that the visa application not be refused under section 501 of the Migration Act 1958.
[sgd] J Block
Deputy President
CATCHWORDS
IMMIGRATION - spouse visa - sponsor - character test- protection of the Australian community - expectations of the Australian community - best interests of the children - level of risk to community - seriousness and nature of conduct - risk of recidivism - whether visa refusal may prevent or discourage similar conduct - false information on visa application
Administrative Appeals Tribunal Act 1975 - section 37
Migration Act 1958 - section 234, 501 Direction 17;
Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Batula and Minister for Immigration and Multicultural Affiars [2001] AATA 496
Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554
Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790
May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648
Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161.
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583,
Santos and Minister for Immigration and Multicultural Affairs [2000] AATA 567
Turini and Minister for Immigration and Multicultural Affairs N988 of 2000
Wang and Minister for Immigration and Multicultural Affairs {2001} AATA 586
REASONS FOR DECISION
J Block, Deputy President
(a) The decision under review in this matter is the refusal dated 27 September 2000 by a delegate of the Respondent of an application for a Class UF Subclass 309 Spouse (Provisional) Visa by Maroun Abou Serhal ("the Visa Applicant") and in respect of which the Applicant, his wife, was the sponsor.
(b) Mr Samir Dalla, of Samir's Multiculture Legal Services, appeared for the Applicant, and Mr Nathan Cureton, of Blake Dawson Waldron solicitors, appeared for the Respondent.
(c) The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits, which were tendered at the hearing:
Exhibit No Description Date
A1 Statement of Mr Maroun Abou Serhal in Arabic
A2 Translation of statement Mr Maroun Abou Serhal 28 February 2001
A3 Statement of Mrs Amal Labban 20 January 2001
A4 Statement of Mr George Abou Serhal 26 March 2001
A5 Statement of Mrs Odette Karam 26 March 2001
A6 Statement of Tony, Charles and Richard Karam 26 March 2001
A7 Statement of Souheil Chaaya 15 December 2000
A8 Statement of Mrs Nina Deeb 11 January 2001
A9 Statement Father Maroun Sfeir,
A10 Birth certicficate John Abou Serhal
A11 Article from Time Magazine 26 March 2001
A12 Applicant's statement 17 January 2001
A13 Statement of Mrs Paulette Abouchabake 22 March 2001
R1 Record of an interview of the Visa Applicant at the Australian Embassy Beirut conducted by Allan Davis, Principal Migration Officer (Compliance) of the Australian Embassy 27 September 2000
I commence (as I have done in similar matters in the past) by way of background and in order to set the scene, by setting out a number of relevant documents:
(a) The Respondent's Statement of Facts and Contentions dated 17 August 2001, which contains an admirable and helpful timetable under the heading "Facts", reads as follows:
"FACTS
1. On 22 March 1965 the Applicant was born in Beirut, Lebanon (Tp222).
2. On 8 February 1968 the Visa Applicant was born (Tp 102).
3. On 7 August 1995, the Visa Applicant arrived in Australia on a visitor visa valid for 3 months from the date of arrival (Tp 65).
4. The Visa Applicant lodged applications for bridging visas on 17 April 1996 and 29 July 1996 (Tps 122 & 68).
5. On 25 August 1996, the Visa Applicant lodged an application for a protection visa (Tp 84) with Department of Immigration and Multicultural Affairs ("DIMA").
6. On 7 April 1997, the delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa (Tps 113 – 118).
7. On 26 August 1997, the Visa Applicant lodged an application for a bridging visa Class E with a request for permission to work (Tp 147).
8. On the 10 September 1997, the application for a bridging visa was approved. Permission to work was denied (Tps 140 – 141).
9. On 28 August 1996, the Visa Applicant lodged an application for review to the Refugee Review Tribunal ("RRT") of the delegate's decision to refuse the protection visa (Tp 84).
10. On 12 November 1997, the RRT affirmed the decision of the delegate to refuse the grant of a protection visa (Tp 161).
11. In December 1997, the Visa Applicant applied for judicial review to the Federal Court of the RRT decision (Tp173) and on 23 March 1998 the Federal Court dismissed this application (Tp177).
12. On 29 June 1998, the Visa Applicant sought Ministerial intervention under Section 417 of the Migration Act 1958 ("the Act") (Tp 187).
13. On 6 May 1999 the Applicant was notified by DIMA that his request for consideration under s417 was denied. In the same letter, the Applicant was asked to contact DIMA to discuss his status. The Applicant became an unlawful non-citizen from 3 June 1999.
14. On 27 June 1999, the Visa Applicant married the Applicant spouse (Tp 10).
15. On 10 March 2000, the Visa Applicant's son was born in Bankstown (Tp 11).
16. On 8 August 2000, the Visa Applicant departed Australia (Tp 218).
17. On 19 August 2000, the Visa Applicant lodged an application for a spouse visa based on his marriage to the Applicant (Tps 212 – 232).
18. On 27 September 2000, the Visa Applicant was interviewed by DIMA.
19. On 27 September 2000, the Delegate of the Minister refused the application for a spouse visa (Tps 14 – 26).
20. On 17 October 2000, the Applicant lodged an application for review with the Administrative Appeals Tribunal (Tps 5 – 9).
CONTENTIONS
21. The factors to be considered in the exercise of the power in s.501 of the Act are set out in the Direction – visa Refusal and Cancellation under section 501 – No. 17 made by the Minister pursuant to s.499 of the Act ("the policy"). The Respondent contends that the Tribunal is bound to apply the policy (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
22. The exercise of the discretion in s.501 involves a two-stage process:
(a) a consideration by the decision maker of whether or not the Applicant passes the Character Test; and
(b) if the Applicant does not pass the Character Test, a consideration by the decision maker of whether the discretion in s501 should nevertheless be exercised, taking into account primary and other considerations.
PART (a) – APPLICATION OF THE CHARACTER TEST
Character of the Visa Applicant23. The Respondent contends that the Visa Applicant does not pass the character test based on the following general conduct:
(a) lodging a Protection visa application on 20 December 1996 without any basis for doing so;
(b) lodging an application to the Refugee Review Tribunal ("the RRT") for review of the Department's decision to refuse him a Protection visa and maintaining the baseless refugee claims that were before DIMA;
(c) filing an application for review of the RRT decision to the Federal Court;
(d) maintaining the baseless claims for refugee status to the Minister for Immigration in a letter when applying for Ministerial intervention under s417 of the Act; and
(e) Remaining unlawfully in Australia between May 1999 and August 2000.
24. The policy indicates at paragraph 1.9 that the Tribunal should consider certain matters (where they are relevant to the facts of a particular case), and, where they are relevant, would, in the absence of countervailing factors, constitute a failure to pass the character test. The following matters listed in paragraph 1.9 are relevant in this case:
(i) Paragraph 1.9(b) of the policy states "whether the non citizen has, in connection with any application for the grant of a visa...provided a bogus document or made a false or misleading statement".
(ii) Paragraph 1.9(c) of the policy state "whether the non-citizen has ever made a false or misleading declaration on an approved form...about the non-citizens character or conduct or both".
25. The Respondent contends that the Visa Applicant has engaged in conduct which would fall within paragraphs 1.9(b) and (c), and as a result he does not pass the character test. There is no evidence of countervailing factors (such as recent good conduct). Further, the Respondent contends that insufficient time has elapsed since the Visa Applicant remained in Australia unlawfully (18 August 2000) to warrant the finding that he now passes the character test.
26. Taking the Visa Applicant's conduct as a whole, the Respondent contends that he does not pass the character test.
PART (b) – EXERCISING THE DISCRETION
27. If the Applicant does not pass the Character Test, the Tribunal nevertheless has a discretion within s501 of the Act. In exercising that discretion, the Tribunal must have regard to a number of "primary" and "other" considerations as outlined in the policy.
PRIMARY CONSIDERATIONS
Protection of the Australian Community28. The Respondent contends that, taking into account the seriousness of the Visa Applicant's conduct, the risk that he will re-offend and the need deter others from similar conduct, the protection of the Australian community weighs heavily against the discretion being exercised in favour of the Visa Applicant.
Seriousness of the conduct
29. Paragraph 2.6(c) states that presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia is considered by the government to be very serious. The seriousness of the Visa Applicant's conduct is considered under the heading of the "Protection of the Australian community" and is a primary consideration. Having regard to the policy, the Respondent contends that the Visa Applicant's conduct in circumventing Australia's Immigration laws is very serious.
30. The Tribunal in the past has treated immigration malpractice as very serious (see for example Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148).
The risk of recidivism
31. The Visa Applicant has shown a disregard for Australian laws and order to obtain advantages for himself. The Respondent contends that this conduct over a number of years would indicate that there is a real risk the Visa Applicant will not respect the law if he is allowed to enter Australia.
General deterrence
32. The refusal of the visa to the Visa Applicant will send a clear message to others that conduct similar to the Visa Applicant's is not acceptable to the Australian community and non-citizens can expect to be refused entry if they engage in similar conduct (Paragraph 2.11 of the policy). In this regard see Msumba and DIMA (McMahon DP, 8 February 2000, unreported at paragraph 39).
Expectations of the Australian community
33. The Visa Applicant has engaged in activity, which the Respondent contends to be of a nature such that the Australian community would expect that the Applicant not be allowed to enter and remain in Australia.
Best Interests of the Child
34. The Visa Applicant and Applicant have one Australian citizen child. The Respondent submits that the best interests of the child should be taken into account as a primary consideration. However, the best interests of this child are outweighed by the need to protect the Australian Community from the type of conduct undertaken by the Visa Applicant. If the discretion in s501 was to be exercised in favour of the Visa Applicant because he has an Australian citizen child, this will send the message to prospective Applicants that lodging false refugee claims in Australia will not bar them from entering and remaining in Australia if they have an Australian citizen child. The Respondent submits that this may encourage other Visa Applicant's to have children for the purpose of being allowed to enter and remain in Australia.
OTHER CONSIDERATIONS
Rights of the Unborn Child35. The Respondent contends the rights of the Applicant's unborn child should not be taken into consideration as a primary consideration (see Ly v Minister for Immigration and Multicultural Affairs [2000] AATA 339 and Hohua v Minister for Immigration and Multicultural Affairs [2001] AATA 102. Rather, the Respondent contends that, at this stage, the fact of the Applicant's pregnancy should be included when considering the interests of the Applicant as a secondary consideration.
Interests of the Applicant and her family.
36. Whilst there will be hardship to the Applicant and her family, the Respondent contends that the primary considerations of the need to protect the Australian community, in particular, the integrity of the immigration system, outweigh the secondary considerations of hardship to the Applicant and her family.
CONCLUSION.
37. The Respondent contends that the Visa Applicant does not pass the character test as a result of his past general conduct. The primary considerations of the protection and expectations of the Australian Community outweigh the hardship to the Applicant and the Applicant's child such that the discretion in s501, despite the finding that he does not pass the character test, should not be exercised in his favour."
(b) I include, by way of balance, the Applicant's Statement of Facts and Contentions, undated, but received in the Tribunal on 27 March 2001, reading as follows:
"I refer to the Respondent's Statement of Facts and Contentions. Adopting the same headings and paragraph numbers therein for the sake of convenient, I submit the following replies: -
FACTS
1. Admitted
2. Admitted.
3.The Visa Applicant arrived in Australia on a visitor's visa. His sole reason for the visit was to see his family (his brother, aunty and two cousins). Prior to arrival to Australia he never formed the view to ever think of remaining permanently in Australia. He has his own fears from the political situation in the explosive situation in South Lebanon, however he was unaware of the existence of any protection rights. In simple terms as confirmed by Mr. Allan Davies in the Primary Decision (TP. 27) that he found that "Australia" was a "nice country", "lovely country", a "peaceful place" and "land of opportunity".
4.These applications were legitimate applications to obtain the right to work and to regularise his stay in Australia.
5.The Visa Applicant went to consult a lawyer seeking his advice of simply: "how to remain permanently in this nice, peaceful country". Initially the adviser suggested that he lodged an application overseas. The Visa Applicant having genuine subjective fear from going back to his war torn region said to the adviser that he is worried about going back, it was only then where the adviser informed him of his rights to apply for protection visa. At this point of time the Visa Applicant naturally would accept his lawyer's advice and paid the fees happily. The Visa Applicant never knew about his rights for such visa prior to obtaining legal advice. The legal adviser assisted him to put his claim in chronology order (TP 96-98).
6.The Primary Decision-maker at paragraph 9 (TP 116) accepted substantial part of the Visa Applicant's claim as credible. The Primary Decision maker however found that his claim as "intelligence" officer is not consistent with his profile (last sentence paragraph 10 TP 117) and ultimately found the Applicant does not have a real chance of convention based persecution if he return to Lebanon. The Applicant was not accused of providing false or misleading information or documents.
7.Admitted, the Visa Applicant rather than working illegally should have respect for the law by applying for the right to work.
8. Admitted.
9.Admitted, the Visa Applicant was advised to pursue appeal to the RRT on legal advice the Visa Applicant sought review.
10.Admitted, the RRT affirmed the Primary Decision. In conclusion (TP 171), the RRT accepted that he may have some involvement with the SLA, however the RRT was critical of the Visa Applicants inconsistency (which was elated by the Applicants forgetfulness). The RRT just as the Primary Decision-maker expressed serious doubts about his role as a spy and ultimately found the Applicant's fear of persecution is not well founded. The Visa Applicant was advised again by lawyers to seek judicial review. He went a long way in the process and expended large sums of monies. He thought he is adopting the usual course and that what his lawyers were doing was perfectly legal. He is still thinking under his own subjective fear is good enough to be granted the protection visa. He was not misleading the immigration law, he was simply adopting his legal adviser's advice all the way.
11.Noted again, he applied to the Federal Court no doubt his application was based on ill legal advice.
12.Admitted, once again on legal advice of Mr. Sam Issa, Solicitor who signed the ministerial, the Visa Applicant was advised to try the last legal resort in the legal process. The submissions simply reiterated the same earlier facts.
13.Admitted, however, it must be noted that 4 months earlier on 28 February 1999 the Visa Applicant met the Applicant (Mrs. Serhal). At the time she married the Visa Applicant he was legally in Australia. Under the Marriage Act Notice of intended marriage was lodged one month at least before the marriage. At the time the said notice was lodged, Mrs. Serhal knew the Visa Applicant was legally in Australia and that according to his legal advisors it is more likely than not he would be granted permanent visa. Mrs. Serhal never harboured an illegal citizen, she simply loved the Visa Applicant and wished to establish a family. Mrs. Serhal was pregnant at the time and suffers complications. Dr. B S Chugh (TP 17) issued medical certificate wherein he state:
" The pregnancy was complicated with bleeding due to placenta being low leading to emergency Caesarean section delivery on 10 March 2000. Her husband's presence during antenatal and postnatal period was very essential. It was due this complication, the Visa Applicant remained for a few weeks to support his wife. Please note through the Minister's letter of notification was dated 6 May 1999 (TP 194). The Visa Applicant received the notification on 18 May 1999. Mrs. Serhal/the Applicant telephoned DIMA at the time and was told there is no problems he had 30 days to leave the country but must come to the immigration office with a booked single ticket to Lebanon and that is what happened subsequently. At all material times the Visa Applicant and the Applicant/wife were doing the right thing and acting either on the legal adviser's or the DIMA's advice.
14.The marriage date was already fixed one month before (May 1999) when the parties lodged the Notice of Intentions.
15. Admitted.
16. On 19 August 2000 Visa Applicant departed Australia.
17.Admitted this was on DIMA's advice. On 22 August 2000 the Visa Applicant lodged application for a spouse visa.
18.As to the availability evidence of what occurred during the interview, Mr. Davis of DIMA report confirmed the Visa Applicant's honesty. Accordingly to Mr. Davis version of the interview Mr. Abou Serhal says:
(i)He feared to go back to Lebanon. His lawyer Mr. Adrian Harrison recommended the protection application.
(ii)He wants to remain in Australia because it's "nice country, lovely country, a peaceful country and a land of opportunities."
(iii)As to RRT appeal Mr. Abou Serhal stated simply honestly that he adopted this cause (on legal advice) to remain in Australia.
(iv)That the very limited period he stayed technically illegal was to support his wife (hoping to start a family).
It was deeply regretted the interview was not recorded. The Applicant contends that Mr. Davis phrased his report to support it's conclusion. With respect to this interview, the Visa Applicant wrote statement in Arabic (which was subsequently interpreted to English) in which he expressed more detailed account of the interview. In the absence of recorded interview and/or contemporary file notes in the T documents, cross- examination of Mr. Davis seems to be pointless. The Applicant contends the two accounts of the interview must be read together to appreciate the full picture of the interview and reconcile the admissions.
19.The Visa Applicant naturally and understandably could not comprehend why he is stamped as a person of bad character because when he came to Australia on visit he liked Australia. He wished to remain in Australia. He could not understand why mere application for protection visa on legal advice and subsequent appeals on legal advice seems to be prima facie evidence of bad character. He can understand why the RRT could not believe easily the Lebanese wartime typical factions and espionage. He is rightly worried to see a list of his legitimate application listed as if it is a list of indictable offences.
20.The Visa Applicant is worried to whether his AAT application is another "offence". Apart from making applications to remain permanently in the country he loved, with a wife who he loved and his baby son, the Visa Applicant character is unblemished with any offence or crime.
CONTENTIONS
1. Contention accepted.
2. Contention accepted.
PART (a) AAPLICATION OF THE CHARACTER TEST
Character of the Visa Applicant.
23.The Applicant contends that the Visa Applicant's general conduct is legal and proper based on his subjective fear of returning to the war torn South Lebanon. We reiterate paragraph 5 & 6 supra. It is the Visa Applicant's right under the International Convention, as adopted by the Australian Law to submit application for protection.
(a)The lodging of the protection application was not "without any basis for doing so." The basis for the application were set out in his 30 paragraphs statement annexed to his protection application (TPS 96-98).
The primary decision-maker examined the basis of the application. The decision-maker summarised his claims in four paragraphs, namely paragraphs 4, 5, 6 & 7 of his decision (TPS 115-118). The decision-maker accepted the claims as set out in paragraphs 4 & 5 however he could not accept the claims under paragraphs 6 & 7 namely his role as intelligence officer. One must respect and understand the difficulties faced by the primary decision-maker to understand and accept the incredible state of affairs in this part of the world. The Applicant submits that what can appear to be impossible from Australian point of view may well be possible in this part of the world.
The problem arise when the fine line between the "incredible" and the "not credible" blurred. Ultimately, the primary decision maker found that Mr. Serhal does not have a real chance of convention based persecution if returned to Lebanon and that his fear of persecution is not well founded (paragraph 11, TP 117).
The primary decision-maker did not find that Mr. Serhal does not have basis to claim protection. He merely found that his subjective fear based on his partly accepted claims did not amount to the technical, objective expression, "Well Founded Fear".
Thus, in this respect the Tribunal is invited to find that there were legitimate basis for the protection application.(b)Upon refusal of protection visa application, DIMA posted the decision to the Applicant under covering letter (TP 111). Under the heading "Review Rights" the letter advised the Applicant of his review rights. The letter enclosed a brochure titled "how you can apply to the RRT", listed the RRT telephone number and advise him that brochures on community languages are available.
As far as the Visa Applicant is concerned, the letter is telling him in effect: " if you are not happy with the decision, do not worry you can go to the RRT, this is your legal right." DIMA's letter never mentioned any adverse or side effects to seeking Review Rights (such as bad character).
Relying on the guidance of DIMA, the colourful RRT brochure and his lawyer's advice, the Visa Applicant lodged his application for review with the RRT. The RRT accepted Mr. Serhal's evidence as to his involvement with SLA between 1988 – 1990, rejected his claims based on being intelligence officer (1991-1993). That is consistent with the same findings of the primary decision-maker. The RRT ultimately concluded inter alia at TP 171 "Despite the very serious consequences which might flow to persons who were known to have been involved in fighting or collaborating with SLA, the Applicant has not sought to argue that his past membership between 1988-1990 would, on his return cause any problems". The RRT affirmed the primary decision on the same objective ground that the Applicant fear is not in refugee law terms- "well founded".(c)On solicitor's and counsel advice and at high cost, the Applicant filed an application for review at the Federal Court. His counsel stated 6 basis for review (at TP 173 & 174). His Honour Madgwick J dismissed the application not for the absence of basis or grounds for review but for absence of jurisdiction. His Honour concluded inter alia as follows, "It seems to me therefore the Applicant's complaint entirely relate to questions of fact which is not the task or entitlement of this Court to review."
(d)As to the alleged "maintaining the baseless claim for refugee status to minister of immigration, the Visa Applicant denies any such allegation of 'baseless'."
His Honour Justice Madgwick referred to the RRT Members findings (in relation to the Espionage issue) in the following terms:
"It is clear from the material to which I have referred. She (the Member) rejected his claim because she felt it was remote, insubstantial or far fetched)" (TP181).
It is with respect submitted that distinction must be made between what is remote and what if baseless. The Visa Applicant on legal advice sought as so many others the minister's intervention. His legal advisor simply restated the same claims however he honestly stated at paragraph 5 of his submissions that his client's case: "does not strictly satisfy the criteria set out in the United Nation Convention relating to the status of refugee." In retrospect the Visa Applicant now believes that the RRT decision was correct and that he was at the time under exaggerated subjective belief that he'll suffer persecution if he returned. The fact is that since his return to Lebanon, Hezballah seems to have forgotten about him mainly as they are heavily involved in the current conflict between palastinian and Israel (the "intifada"). Recent news indicated that war may start again in South Lebanon between the Palestinian hugh 10,000 guerillas and refugee camp in Ein Al Helwa, Hezballa, Israel and the Christian Lebanese.
(e) We reiterate paragraph 13 supra.
24.The Visa Applicant never provided bogus documents. He never as explained made false or misleading statements in his applications. The primary decision-maker and the RRT accepted his claims however found the espionage is "remote" or "far fetched". The Visa Applicant maintained the truthfulness of his claims at all material times.
25.The Visa Applicant contends that exercising his rights to submit application for protection and on legal advice submitting further applications for review ought not to be considered as evidence of bad character. He was never advised that seeking review might stamp him as a person of bad character. His general conduct was simply to act on legal advice. Evidence of good character will be submitted to the Tribunal. In the absence of concrete evidence to support such serious accusations, the Respondent must only accept the RRT Tribunal findings. In respect of the Visa Applicant's claim the Tribunal accepted the evidence of his SLA activities but rejected the espionage claim and described it as doubtful claim but not as false, or misleading.
26. Taking the Visa Applicant's conduct as a whole, the Applicant contends that he does pass the character test. For an Applicant general conduct to amount to the section 501 "not of good character" the conduct must be of sufficient gravity to warrant the application of the grave consequences of section 501. In Irving v Minister for Immigration 7 Ethnic Affairs (1996) ALR 84 (Davies, Lee and Nicholson JJ) His Honour Justice Lee held that:
"Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggest that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry."
In Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321, the full Court said:
"…does not charge the decision-maker with the task of making a judgement, general in nature, about the character of a person, ie, a judgement to which the statutory context is of no relevance. The concept of 'good character' in s 501 is not concerned with whether an Applicant 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 (paragraph 8, page 324). Whilst the Court went on to say that, within the parameters identified above, the standard might vary according to whether an Applicant sought a temporary or permanent visa, the Court observed that, in the case before it, "Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining …that he was not a person of good character.." (para 24, page 327), in circumstances where the Applicant was abusive to his wife (from whom he was separated), faced fraud charges in Scotland, and had lied to the Department of Immigration in his dealings with them."
It is the Applicant's submissions that the matters the Respondent specifically relies in his contentions are not matters of sufficient gravity to base a finding that the Applicant is "not of good character".
PART (B) EXERCISING THE DISCRETION
27. Not disputed.
PRIMARY CONSIDERATIONS PROTECTION OF THE AUSTRALIAN COMMUNITY
28.The Applicant contends the Visa Applicant's conduct could not amount to serious grave conduct. He never entered Australia from some boat or submitted false passport. He never committed criminal offence and never provided bogus documents. We refer the Tribunal to the following AAT decision. In all cases the Applicants were successful. In all cases the Applicants committed serious criminal offences. In all cases children were involved.
· Paul Alexander MacIllvaney v Minister for Immigration & Multicultural Affairs (2000) AATA 416 DP Breen. Brisbane (No. Q001/229) [Conviction 7 and 8 years imprisonment].
· John Harold Hall v DIEMA (2000) AATA 834 DP Breen [sexual abuse of children].
· Carl Trevon Quinn v DIEMA (2000) AATA 389 (No. Q00/2000 Stealing with violence & others).
· Barbara June Ankotta v DIEMA (1999) AATA 818 Dr. D Chappell [Murder].
SERIOUSNESS OF CONDUCT
29.The Applicant contends that he made no false or misleading statements none of Tribunals accused him of such serious accusations.
30.Re Lachmaiya must be distinguished. In Lachmaiya the deceits were grave in nature. Please refer to Strangio & the Minister for Immigration & Ethnic Affairs (1994) 35 ALD 676.
THE RISK OF RECIDIVISM
31.The Visa Applicant showed regard to the immigration law. His applications were in accordance with his rights under the immigration law and on legal advice. The Visa Applicant respected the law of Australia at all material times from his entry in August 1996 until his departure in August 2000. He never committed any crime. His AFP records and his criminal overseas records are clear.
If application to remain in Australia is considered to be an offence the Applicant we submit would not re-offend again (apart from this current application). The Applicant works legally and complied with tax laws (TP 215-216) (most unfortunately however he expended substantial part of his income to pay lawyer fees particularly Federal Court costs). There is no risk of recidivism. There are no co-offenders. If the Applicant was granted permanent visa, he would be still under surveillance for 2 years. If he committed any offence, he would not be able to obtain Australian Citizenship and his visa would be cancelled pursuant to s. 501.
GENERAL DETERRENCE
32.The question of general deterrence is not of any weight in this matter. This is not a notorious crime, which was widely publicised to the community or brought to the attention of incoming migrants. The Applicant contends the relevant facts to his permanent visa will be confined to close family circle. Under this particular heading the Respondent cited the decision in Msumba. The facts in Msumba could not be compared with the facts in the present case. In Msumba, the Applicant made series of fraudulent applications. He made number of false statements in connection with fictious spouse visa, he submitted false statutory declarations and lodged fraudulent documents including lease in his name and the name of his alleged spouse. The Applicant submits that the case of Msumba illustrates a grave misconduct which may well amount to the s 501 "not of good character". The present set of facts could not be compared with the facts in Msumba.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
33.These expectations are that non-citizens will obey Australian laws. The Visa Applicant is not convicted with any offence. The Visa Applicant entered Australia legally with valid passport. He likes Australia, Australians and the peaceful life. He, on legal advice made applications to remain in Australia. Even if he exaggerated in his account in the protection visa, this is very common practice and would be expected. The Australian community would not consider the Visa Applicant legal premater in submitting legal applications to remain in Australia only, to the exclusion of lack of any criminal offence, his admiration of Australia and Australian people, the serious hardship to him, his wife and most importantly his child as a consequence of preventing his father from residence in Australia. The Visa Applicant's one year old son has the right to have a father. The Australian community on the balance, is a compassionate community who cared so much about children would expect the father to join his child.
BEST INTEREST OF THE CHILD
34.as to the best interest of the children, I refer to Dr. D Chappell case of Iakopo paragraph 55 and to the Ministers Direction under 499 at TP 39-40. The Applicant contends that it would be impossible for her and that it is not in the best interest of their child to relocate in South Lebanon. In her statement dated 17 January 2001, she did set out the extreme emotional and financial hardship she would suffer as a result of not granting the visa to her husband. It is the Applicant intentions that shortly upon her husband arrival to Australia she would resign from her current job to devote her time to her children. She will then rely on the husband to work and support the family. It is in the best interest of the children to have a full time caring mother. The other alternative is for the Applicant/wife may find herself forced to resign and live on DSS handouts and thus burden the Australian taxpayers. The Applicant/mother is looking foremost to have the Visa Applicant/father back so that she can look after the children full time. It is the Applicant's contention that the Tribunal discretion should be exercised in favour of the best interest of her born child and unborn baby.
OTHER CONSIDERATIONS RIGHTS OF THE UNBORN CHILD
35. As the interest of the Applicant/mother the Applicant mother contends:
(i)As per her statement she would suffer serious emotional and financial hardship in raising the children of marriage.
(ii) the genuine of marriage is not in dispute.
(iii)The Applicant/mother hardship would effect all the members in her family particularly her mother and her sister.
(iv)The Visa Applicant would suffer emotional hardship as a consequence.
(v)The child first birthday was surrounded by sorrow for the absence of the father.
(vi)On 6 April the Applicant/mother will have to undergo caesarian operation for the birth of her second child. That is only six days from the hearing date and the Applicant/mother contends that due to the short period, the forthcoming birth of her new baby ought to be considered a primary consideration and reserve her rights to submit further short submissions upon the birth of her second baby.
36.The Respondent concedes that there will be hardship to the Applicant, her family and children. The Applicant contends that the Tribunal discretion ought to be exercised in favour of the Applicant as the hardship far overweight the alleged not of good character general conduct.
CONCLUSION
37. The Applicant contends that applying the law as stated and the cases referred to in these submissions, the Tribunal is invited in its application of the law to the facts, to exercise its discretion in favour of the Applicant."
(b) It will be noted that the Applicant's Statement of Facts and Contentions, received in the Tribunal on 27 March 2001 refers in its terms to the Respondent's Statement of Facts and Contentions. The Respondent filed a Statement of Facts and Contentions dated 20 March 2001, and it is to that statement that the Applicant in effect replied; subsequently however, the Respondent filed an amended Statement of Facts and Contentions and being the statement referred to in subclause (a) above.
(c) Exhibit A2 is the English translation of a letter addressed by the Applicant "to the Honourable High Court of Australia" dated 28 February 2001; that statement reads as follows:
"Best regards
I, Maroon Abu Sarhal, who had an interview at the Australian Embassy in Beirut on 27 September 2000.
During the interview Mr Allan Davis asked me:·On 8 August 1995 you arrived in Australia and stayed until 29 November 1996.
·I answered yes.
·And on (In English: 28 august 1996 you lodged a protection visa application) and the application was rejected on 7 April 1997.
·I answered yes.
·On 18 April 1997 you appealed to the RRT and on 13 April 1999 your application was rejected.
·I answered yes.
·On 27 June 1999 you married Miss Bernadette Karam.
·I answered yes.
Then he asked me why did I marry Miss Bernadette Karam. I said because I fell in love with her and she fell in love with me and I found the ideal woman to live with.
Then he asked me do you love Australia? I answered him yes. Then he asked me why do you love Australia? I said to him Australia is a country of peace and beauty and has opportunities for life.
During the interview Mr Allan David did not ask me or suggest from his conversation anything about whether my return to Lebanon would create a danger to my life. I would have answered him about it if he had suggested or indicated to me from his conversation by asking if my return to Lebanon is a danger to my life.
Definitely I am afraid about returning to Lebanon and my life is in danger but I was compelled to return to Lebanon because my finances did not allow me to go to any other place except Lebanon and I had to leave Australia to make my application from overseas as we had been told by the Department of Immigration in Australia when my wife contacted them, I mean the Department of Immigration.
Then Mr Allan Davis asked me why I stayed in Australia from April 1999 to August 2000 without an authorisation or permit.
I said to him that my wife while she was pregnant was in a very bad health situation and was suffering from bleeding and there was a danger to her life and the baby. She needed me and I was compelled to be beside her. This was my answer and not what Mr Allan Davis said that I was hoping or wishing to establish a family in Australia.
Then he asked me, "do you know that what you did is against the Australian Law"? I said yes, but I did not mean to insult the Australian authorities by the word "yes" and apologise because I was compelled to stay in Australia without a visa.
These are the questions which Mr Allan Davis asked me during the interview at the Australian Embassy in Beirut.
I am not making anything up against Mr Allan Davis but this is the truth. This is how he asked me and how I answered him but Mr Allan distorted the matter against me.
I hope God and the Honourable Judges will take this text into consideration."
(d) Exhibit A12 is a statement by the Applicant dated 17 January 2001; it reads as follows:
"My full name is Bernadette Abou Serhal and I reside at 7/94-102 Meredith Street, Bankstown.
I am 35 years of age and I have been married for eighteen months and I have a son who is ten month of age. I have nearly gone full term with my second child who is due on the 14 April, 2001.
My husband Maroun Abou Serhal has returned to Lebanon and is seeking to return to Australia as a permanent resident. My husband's application for permanent residency has been refused by the Department of Immigration and Multicultural Affairs.
The refusal of the Department of Immigration to allow my husband's return to Australia has caused great and I believe unnecessary hardship in my life.
I face extreme financial and emotional hardship because of the following reasons:·I purchased my home unit in March 1998, and I have a mortgage to pay
·as mentioned earlier I am pregnant and will not be able to continue work for much longer
·I telephone my husband in Lebanon on a regular basis as a result I have a high telephone account (we were only married for a short period before he was required to leave Australia)
·I have forwarded money to my husband in Lebanon as there are few job opportunities for him
·because of my present situation I have borrowed money from family members to "get by" and this is a burden on my mind as I feel guilty for having to do so as I have never had to borrow money from family previously
·I have every-day normal bills to pay (council rates, electricity account, water rates, car insurance and registration, body corporate fees, health fund, etc)
·I have the responsibility of providing for my child (food, clothing, medical expenses, etc)
·I suffer from emotional hardship and I need the support of my husband
·I am suffering from pre-natal depression (in all likelihood brought on by my present difficult situation)
·there are complications with the oncoming birth of our second child because I have to go through caesarean for the second time (see attached Doctors report)
·because of my pregnancy I have diabetes and I worry about controlling my sugar level, I am required to monitor my blood sugar level four times a day
·I am deeply depressed about having to give birth to our second child alone and not having my husband present
·I need the love and support of my husband to cope with everyday living and I especially need his love and support during this traumatic time
·I am having emotional stress worrying about looking after my first child when the second child is born
·I feel that I will not be able to cope with looking after two children immediately after the birth of my second child as I will be physically weakened
·I am suffering emotional stress worrying about who will look after my eldest child, who will be twelve months old whilst I am in hospital
·the responsibility to look after my first born will fall upon my mother, who is not in the best of health herself and has to look after my elderly father who has had a stroke and requires constant care and attention
·my mother also has to look after my sister who suffers with multiple sclerosis
·the burden that my mother carries is affecting her health and in turn causes emotional stress to myself
·the absence of my husband and the father of my child will have an effect upon our son in that our son is growing up without knowing his father (he has not seen his father for 5 months)
·a young child requires the guidance and support that a father can give
·I am concerned that if my husband and son continue to be kept apart it may have a permanent and an adverse effect on our son
·I cannot take our son to Lebanon to be re-united with his father because of financial hardship
·I am a religious person with strong beliefs in the "church" and I need to have our son christened which cannot in my opinion take place without the child's father present.
In closing I would like to inform this tribunal of the following:
·I was born in Lebanon in 1965 and arrived in Australia in 1971
·I was granted Australian Citizenship on 14 July 1975
·I was educated at Bankstown Girls High School until I was seventeen years of age
·I gained work at the age of eighteen with the New South Wales Police Service
·I have been in full time employment since that time
·I have never been charged with any criminal offence nor do I have any criminal history
·I am a person who has the utmost respect for the laws of this country
·I believe my family and I are being unfairly treated by the Department of Immigration in this matter
·my husband has the same beliefs as I and I know that if he is given permanent residency he would be an asset to this country
·I implore you to allow my family to be re-united and stop the emotional and physical stress that I have suffered and will continue to suffer if my husband is denied his request for permanent residency.
I give the undertaking and I am prepared to swear on oath that the information contained in this statement is true and correct in every detail.
(e) Exhibit R1 is, as set out previously, the record of an interview of the Visa Applicant in Beirut in September 2000; it was conducted by Mr Allan Davies with the assistance of an employee of the Embassy who is fluent in both English and Arabic; Exhibit R1 reads as follows:
"RECORD OF INTERVIEW – MAROUN ABOU SERHAL
I interviewed Maroun Abou Serhal at the Australian Embassy, Beirut on 27 September 2000. The following is a record of what was said at that interview.
Allan Davis My name is Allan Davis and I am the Principal Migration Officer (Compliance) in the Embassy. I want to talk to you about your visit to Australia and the circumstances surrounding your remaining in Australia beyond the approved date of 8 November 1995. I am looking at your application in the context of section 501 of the Migration Act. That section of the Act says that an application can be refused if an Applicant is found to be a person who is not of good character, based on their general conduct. I want you to be completely honest in your replies as any attempts to mislead may result in refusal of your application. Do you understand?
Maroun Abou Serhal Yes
Allan Davis I want to check the information we have concerning your visit: on 30 April 1995 you were granted a subclass 676 visa, with a lawful stay until 8 November 1995; on 8 August 1995 you arrived in Australia; on 30 October 1995 you were granted a subclass 686 visa in Australia, valid until 29 November 1996; on 28 August 1996 you lodged a Protection Visa application; this was subsequently refused on 7 April 1997; on 18 April 1997 you appealed to the Refugee Review Tribunal (or the RRT); the RRT affirmed the decision not to grant you Protection Visa status, on 12 November 1997; on 20 July 1998 you sought Ministerial intervention (from the Australian Minister for Immigration and Multicultural Affairs) in respect of your application; this was refused on 13 April 1999; on 27 June 1999 you married an Australian citizen, Ms Bernadette Karam; a child was born of this relationship on 10 March 2000; you finally departed Australia on a Bridging Visa E on 19 August 2000; on 22 August 2000 you lodged an application for a subclass 309 visa. Is this information correct?
Maroun Abou Serhal Yes
Allan Davis Why did you apply for a Protection Visa in Australia?
Maroun Abou Serhal I told them I was afraid of returning to Lebanon. In fact, I applied for a Protection Visa because this was the easiest way to remain in Australia.
Allan Davis Did anyone advise you to do this?
Maroun Abou Serhal My lawyer, Andrea Harrison, of Firmstone Associates told me this was the best way. She filled out my application for me.
Allan Davis Did she explain what the application said?
Maroun Abou Serhal Yes.
Allan Davis So, you knew you were claiming to be a refugee, but knew you were not a refugee, because it seemed this was the best way to remain in Australia?
Maroun Abou Serhal Yes
Allan Davis Your application was refused by an Immigration officer. You then appeared before the Refugee Review Tribunal. The Tribunal did not accept your Protection Visa claims. It was found that your claims were "inconsistent and inherently implausible"- that means, more or less, that they could not be believed! What do you have to say about this finding?
Maroun Abou Serhal I told them what I did because I wanted to remain in Australia.
Allan Davis Allow me to ask you again, did you know that the application form was for refugee status?
Maroun Abou Serhal Yes
Allan Davis So, why did you sign it?
Maroun Abou Serhal I wanted permanent residence in Australia
Allan Davis Why?
Maroun Abou Serhal I found that Australia is a nice country- a lovely country. It is a peaceful place, a land of opportunities.
Allan Davis But, the war in Lebanon ceased some seven years before your arrival in Australia. Why claim refugee status when you knew it was not true?
Maroun Abou Serhal I wanted to find the right girl and build a family. It took time to find the right girl.
Allan Davis Did you know you were not entitled to stay in Australia?
Maroun Abou Serhal Yes.
Allan Davis Did you make serious attempts to regularise your immigration status in Australia, apart from claiming to be a refugee?
Maroun Abou Serhal No, I don't think so.
Allan Davis So, for three and a half years, you presented false information to the Department of Immigration and Ethnic Affairs and the Refugee Review Tribunal and others, to remain in Australia?
Maroun Abou Serhal Maroun Abou Serhal did not respond to this question.
Allan Davis I note that you are married to an Australian citizen. You married Ms Bernadette Karam on 27 June 1999.
Maroun Abou Serhal Yes.
Allan Davis You have a child, born on 10 March 2000.
Maroun Abou Serhal Yes.
Allan Davis Were you aware, when you got married, that you did not have any guarantees you would be allowed to remain in Australia?
Maroun Abou Serhal Yes.
Allan Davis Did you seek to regularise your status with the Department of Immigration?
Maroun Abou Serhal No.
Allan Davis Did you seek to hide your presence from Immigration officials?
Maroun Abou Serhal Yes.
Allan Davis Why?
Maroun Abou Serhal I thought I would be allowed to remain.
Allan Davis Do you have anything else you want to tell me?
Maroun Abou Serhal No.
Allan Davis Thank you for coming in. I am going to consider your case and get back to you quickly on the matters we have discussed.
The above represents an accurate record of what was said at interview.
Ms Salome Stambouli, a Locally Engaged Employee at the Australian Embassy, Beirut translated between English and Arabic during the interview and agrees with the content of this record.
Allan Davis
Principal Migration Officer (Compliance
Australian Embassy, Beirut"
Oral evidence was given by the Visa Applicant, assisted by an interpreter in the Arabic language, by telephone link to Lebanon. In addition oral evidence was given by each of the Applicant's and her sister, Paulette Abouchabke, who is referred to in brief as "the sister". The Respondent called Mr Allan Davies, also by telephone link to Lebanon, because the Visa Applicant had denied that he had made certain admissions at the interview in Beirut referred to in Exhibit R1.
I have deliberately included the whole of Exhibit R1 in these Reasons precisely because I am satisfied firstly that Mr Davies was assisted at the interview by an experienced assistant fluent in both English and Arabic, and do not regard as relevant (despite contentions by Mr Dalla to the contrary) that she may not have been a sworn interpreter in respect of these two languages and secondly because I am satisfied that Exhibit R1 was made up on the day of the interview and that it accurately records the substance of that interview. Mr Davies proved to be by far the most articulate, honest and intelligent witness in these proceedings and I accept the whole of his evidence without reservation. Indeed Mr Dalla on behalf of the Applicant accepted that the evidence of Mr Davies was truthful; it was indeed in these circumstances that Mr Dalla fairly, and in my view properly, conceded, that the Visa Applicant did not pass the character test and that the matter accordingly fell to be determined in accordance with part 2 of "Direction-Visa Refusal and Cancellation under section 501 - No17" ("the Direction"). I intend to deal with the relevance of the Direction in greater detail later in these reasons.
It is in these circumstances and against this background that I do not consider it necessary for me to deal in great detail with the evidence of the Visa Applicant. Briefly in respect of his evidence:-
(a) He is a shoe designer by trade. Prior to departing for Australia he worked at a shoe factory. While working at the shoe factory, he alleged he was gathering information in West Beirut for the Lebanese Southern Army. He claimed that he left the job (several months before his departure) because his employer had suspicions that he was an agent for the Lebanese Southern Army. He said that he left Lebanon because he feared for his life. He accounted for the period of time between being granted a visa and actually departing Lebanon by stating that he wanted to make sure that his path was clear; he had feared that his name was on a list at the airport and that he might have trouble leaving. He also said that his cousin was a General and could check whether his name was at the airport; however, he only checked this some 2 or 3 months after being granted a visa.
(b) He came to Australia on a tourist visa to visit family and to attend a nephew's baptism, arriving on 7 August 1995. He claimed he had no idea about Protection Visas when he first arrived in Australia; he only found out about them when he approached a solicitor, Sam Issa, in order to ascertain if he could remain in Australia. The solicitor allegedly told him that he would have to return to Lebanon and apply offshore. The Visa Applicant then told the solicitor his fears about returning to Lebanon and the solicitor suggested that he could apply for a Protection Visa.
(c) The Visa Applicant applied for a Protection Visa on 28 August 1996, about a year after his arrival in Australia. Up to this time he had renewed his Visitor's Visa. The Protection Visa was refused and he appealed to the Refugee Review Tribunal ("RRT") on advice from Adrian Harrison, a solicitor. This solicitor had allegedly given the Visa Applicant considerable hope for success, but the appeal was unsuccessful. The Visa Applicant then appealed, also on the advice of Mr Harrison, to the Federal Court; the application was dismissed with costs. He subsequently applied for ministerial intervention under section 417 of the Act, but this was also unsuccessful. The Visa Applicant said that the entire process had cost him approximately $8,000, including the costs ordered against him by the Federal Court. He stated that his legal advisers did not tell him he was doing anything wrong or illegal and that he never changed his story and told the truth in all applications. He did not work while in Australia, but was helped by his family financially and also sold his car to assist his financial situation. He remained in Australia illegally between June 1999 and August 2000; he claimed he felt he had to stay because his wife became pregnant and had a difficult pregnancy.
(d) The Visa Applicant now lives in Lebanon. He said that if he were not allowed into Australia he would continue to live in fear. He was unsure whether his wife would agree to join him in Lebanon. He and the Applicant have been in contact at least once a week since his return, and his wife sends him videos of their son about once a month. He is not currently employed, because he said it is difficult for him to move from place to place (because of his fears) and there is no work available where he lives. While he still fears the Hezbollah, he said that they are leaving him alone for now because they are busy with the Israeli-Palestinian conflict. Because he was away for a number of years, he believes they may have forgotten about him, but he needs to keep a low profile so that they do not remember him. He said that he does not think his wife and son would be safe if they joined him in Lebanon.After the Visa Applicant had been in Australia for an extended period (ie more than a year) the Visa Applicant decided to proceed with an application for protection visa on the grounds that he was a refugee. I refer in this context in particular to the content of the Respondent's Statement of Facts and Contentions quoted in full earlier in this reason under the heading of "Facts" and in particular clauses 3 to 13, both clauses inclusive. These applications, albeit made through different advisers took the usual course of an original application for a protection visa lodged with the Department of Immigration and Multicultural Affairs (denied) followed by an application for review to the Refugee Review Tribunal (also denied) and thereafter an application to the Respondent under section 417 of the Migration Act 1958 ("the Act") also refused. Indeed and as set out previously, this Visa Applicant also applied to the Federal Court for judicial review of the decision by the Refugee Review Tribunal and that application was dismissed with costs by the Federal Court on 23 March 1998. All of the Visa Applicant's applications failed in particular because of findings that the Visa Applicant's contentions and allegations as to his being a refugee were inherently improbable and could not be accepted.
In evidence before me in this hearing, the Visa Applicant persisted with his allegations as to his alleged refugee status. There were vague and unsubstantiated allegations of espionage and additional references to a relative apparently holding high military rank who might or might not have been able to furnish some form of protection. That evidence by the Visa Applicant must be and is rejected.
In his interview at the Australian Embassy (referred to in Exhibit R1) the Visa Applicant admitted (truthfully) that he was not and never had been a refugee on any basis and that he had thought to settle in Australia because he liked Australia. Exhibit R1 indicates that he had said that he had told the authorities that he was afraid of returning to Lebanon but in fact that he applied for a protection visa because "this was the easiest way to remain in Australia". At a latter stage in his interview Mr Davies asked the Visa Applicant, having regard to the fact that the war in Lebanon ended some seven years before his arrival in Australia, why he claimed refugee status when he knew that his claim was untrue; his answer was that "I wanted to find the right girl and build a family. It took time to find the right girl". The Visa Applicant admitted that he knew that he was not entitled to stay in Australia and admitted further more that he did not make serious attempts to regularise his status, apart from his (false) claims, that he was a refugee. Although exhibit R1 has, as I have said previously, the ring of total truth, the Visa Applicant nevertheless in the hearings before me (which lasted for some two days), denied that exhibit R1 had been accurately recorded by Mr Davies.
I find as a matter of fact that the Applicant was not and never had been a refugee of any description and that his allegations to that effect were fabricated and untruthful. It is clear that on a balance of probabilities the Visa Applicant committed a considerable number of breaches of section 234 of the Act; the maximum penalty prescribed is such that I must regard his conduct as very serious indeed.
The Visa Applicant does not appear to have worked illegally in Australia. However, he overstayed his visa and was again untruthful in answer in his spouse visa application. He said in particular that he had never been required to leave any country, when he knew he was obliged to leave Australia; he knew that he could have not made a spouse visa application while in Australia.
Quite how the Visa Applicant manages financially is a mystery. He did not work in Australia even though he was here for a long time. He has not worked since returning to Lebanon; he said that he had received assistance from his family in Lebanon; he has also received financial assistance from the Applicant and notwithstanding the fact that she can ill afford to give him that assistance.
There are now two children of the marriage; one child who is now a year and four months, was born to the parties before the Visa Applicant's return to Lebanon and another, now aged four months, who was born after his return to the Lebanon. The Tribunal notes that it agreed to an amendment to the Applicant's Statement of Facts and Contentions so as to record that there are two minor children of the marriage.
The Applicant has worked for some 18 years as a clerical assistant in the Police Department of N.S.W. She has exhausted all of her entitlements to paid maternity leave and now lives on social security. Both children were born by Caesarean section. She has very little help at home; her mother must devote most of her time to care of her father who is seriously ill. A sister who might otherwise help has multiple sclerosis. The sister who gave evidence before me, is herself divorced with two small children and so that her ability to help the Applicant is limited. The evidence of the Applicant must be treated with a degree of reserve. She had no hesitation in giving evidence as to matters of which she could not on any basis have any personal knowledge. I refer in particular in this regard to her application for review (pages 5 and 6 of the T-documents) from which I quote as follows:
"When my husband did apply for the protection visa on 28 August 1996 it was genuine because he did fear for his life if he returned to Lebanon and he still does. Even though the war did end 7 years prior to that date as Mr Davis has advised, there were still people out there who set out for revenge no matter how long it took. As for Mr Adrian Harrison of Firmstone Associates, he encouraged my husband to complete the application form and gave him hope that if he took it to court he would be granted permanent residence, while he was billing him for everything that he could and my husband just paid the accounts with no questions asked. When I contacted Mr Harrison on a couple of occasions, I questioned him about several services he was billing him for, including interviews supposedly conducted with my husband and an interpreter that never took place, he just said that he will be willing to remove those services from the account and reduce the bill. Mr Adrian Harrison only used my husband to make his money and gave him false hopes. In defence of my husband I state that he was misled by a member of the legal profession.
My husband, as would any person unfamiliar with the laws of a new county heed the advice of the person acting on his behalf in their endeavour to remain in Australia. It now appears that my husband was "ill-advised " by Mr Harrison.
On 12 November 1997 the Refugee Review Tribunal did refuse the appeal to grant my husband a protection visa because his testimony was unsupported. My husband could not support the fact that he was threatened and feared for his life as he did not have any documentary evidence, especially when all this happened during the war where the only thing that matters is staying alive. The last thing on a person's mind would be reporting threats and violence especially when everyone else was in a similar situation. My husband did not apply for refugee status just to remain in Australia and I don't believe that he acknowledged this during the interview as Mr Davis has claimed, because it is not true. If my husband just wanted to remain in Australia he would have found an easier way to do so and not go through the trouble and the expense of the court system where he had paid all court costs with the help of his brother to the Australian Government Solicitor of the Attorney General's Department including tax. On the 19 August 2000 my husband returned to Lebanon even though he is still in danger and fears for his life but had no choice but to return in order to lodge his application for the grant of a Subclass 309 visa for permanent entry to Australia. My husband was truthful and open during his interview in Beirut with Mr Davis.
My husband Maroun Abou Serhal proceeded with the refugee visa on the advice of his solicitor Mr Adrian Harrison where he encouraged him that if he proceeded he would eventually be granted permanent residence. During the interview my husband was asked why he wanted to reside in Australia where he stated that it was a "nice country, a lovely country, a peaceful place and a land of opportunities and that he had found the right girl to build and raise a family. According to the refusal, Mr Davis has used my husband's words and stated that they were his real reason for wanting to remain in Australia. Mr Davis forget to mention that he told my husband that he did not believe his reason behind the protection visa which proves that he is giving his own personal opinions into this matter. Mr Davis should not be giving his personal opinions on government issues which may effect the lives of other people especially when the Australian Government Solicitor had already notified my husband officially of the decision."It must be noted also that the Applicant was aware of the Visa Applicant's uncertain residency status before her marriage to him. The Applicant said in particular during the course of her evidence that the Visa Applicant was within his rights in bringing all of his various applications on the basis that the law permits such applications; she did not appear to have any regard to the fact that all of such allegations were based on untruthful allegations by the Visa Applicant himself; it will be noted further more that as appears from pages 5 and 6 of the T-documents, the Applicant seeks to place blame on the Visa Applicant's advisers.
I do not think the evidence of the sister advanced the matter very much, although it did serve to confirm that the Applicant's financial and personal position is extremely difficult. The sister too sought to suggest that the Visa Applicant's claims that he was a refugee were true, even though she could have had no personal knowledge. She too was aware before the marriage of his uncertain residency status.
Mr Dalla tendered a number of exhibits which are in effect character references without referring to them in any way; all of the character references in question (included in the exhibits listed previously in these reasons) suffer from a substantial defect in that they do not make any mention whatever of the conduct of the Visa Applicant which gave rise to the refusal of the visa. They too can not be accorded much weight.
Mr Dalla, in his submission placed great emphasis on the fact that the Visa Applicant in relation to each of his various applications had legal or other advice. I do not see why this is relevant or helpful. As I have indicated, each application was based on false testimony. Mr Dalla also cited a number of cases (of distinctly dubious relevance) of persons convicted of serious crime who nevertheless for one or another reason received relief from this Tribunal or the Courts.
I turn now to consider the Direction. I have in previous decisions given in this Tribunal expressed the view that the Direction is binding on the Tribunal or that at the very least it constitutes policy to which this Tribunal should have regard. This arises in particular having regard to recent decisions of the Federal Court in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 and Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648. I refer in particular in this context to clause 12 of my decision in re Wang and Minister for Immigration and Multicultural Affairs {2001} AATA 586 which reads as follows:
"12. (a) I next turn to consider the "Direction - Visa Refusal and Cancellation under Section 501 – No.17" ("the Direction").
(b) Mr Poynder very fairly conceded that on any basis the Direction constitutes policy to which I must have regard.
(c) I have previously held that the Direction is binding on me, notwithstanding the recent Federal Court judgments in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. (I have not previously commented on an even more recent judgment in Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648.) I refer in this regard to paragraph 6 of my decision in Re Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496 (and repeated in Re Awa (supra) at paragraph 3(d)) as follows:6. (a) I now deal with the "Direction – Visa Refusal and Cancellation under section 501 No. 17" ("the Direction"). The Direction was made under section 499 of the Act and is in its terms expressed to be binding on all decision-makers, and including this Tribunal.
(b) It is convenient at this point to consider a recent judgment of the Federal Court in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. That judgment of Dowsett J was handed down on 4 May 2001. I became aware of it on the day prior to the hearing and arranged for my associate to phone the representatives of both parties, in order to give them notice that it might be relevant.
(c) Paragraphs 32 and 34 of the judgment in Aksu (supra) read as follows:
32 In my view, the Minister was not bound by the Direction. He had the unfettered discretion conferred by s 501. If he treated himself as bound by it, then he erred. Given his adoption of the briefing paper as his reasons, it seems that he did so. However he was entitled to give such weight to the various factors, as he thought appropriate. Had he simply chosen to place more weight upon the so-called primary considerations than upon other matters, having regard to the facts of the case, there could have been no criticism of the decision. However it is clear that his decision as to the pre-eminence of the primary considerations was not based upon his assessment of this case. According to the briefing paper (and therefore according to his reasons) he has chosen to proceed upon the basis that a consideration which is not a primary consideration cannot be more important than a primary consideration simply because the policy says so.
….
34 The Minister's adoption of the briefing paper implies his adoption of the "binding" nature of the Direction as to weight. It was submitted that he should be taken to have known that he could depart from the Direction should he so choose and to be aware of his own powers. However if that was so, and if he had turned his mind to the matter, one would think that he would have perceived the need to make it clear in his reasons that he did not consider himself to be so bound. He would not then have adopted the briefing paper. It is an inescapable conclusion of his adoption of it that he proceeded in accordance with it. This must inevitably have included acceptance of the allegedly "binding" nature of the Direction. It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. In my view this fettering of the discretion constituted an error of law for the purposes of par 476(1)(e) of the Act.
It would seem that in Aksu (supra) the Respondent Minister made the relevant decision personally and that he did so by reference to, and on the strength of a briefing paper; it would seem also that that briefing paper may not perhaps have been in all respects complete. It is clear though, that the Minister considered himself bound by the Direction, which was of course, a Direction of his own making. The Court however, came to the conclusion, as set out above, that the Direction was not binding on the Minister. This leaves open the question of whether, assuming the Direction is not binding on the Minister, it is binding in accordance with its terms on a delegate of the Minister or this Tribunal. It may be arguable that, if the Direction is not binding on the Minister, it is equally not binding on his delegate or on the Tribunal which, after all, stands (so to speak) in the shoes of the Minister.
(d) The opening portion of the judgment in Aksu (supra) sets out a list of cases considered by His Honour. It does not cite the judgment of the Full Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, which would appear to indicate that the Tribunal is bound by the Direction. Rokobatini (supra) was, it is true, concerned with a different Direction, although also one pursuant to section 499 of the Act, and at a time when section 499 was in a slightly different form. However, the Tribunal considers that it is authority for the proposition that where the Minister issues a Direction under section 499 of the Act, that Direction is binding on the Tribunal. Paragraphs 16 and 17 of Rokobatini (supra) (at 587) read as follows:
16 This submission raises similar, but not identical, issues as are involved in the primary judge's conclusion that the reasons of the tribunal were, in fact, in accordance with the Direction. In view of our finding as to the error of law, it is unnecessary to pursue this latter argument to its conclusion. Underlying each is the question as to whether there is any relevant difference between applying the policy on the one hand, or the Direction on the other, in the circumstances of this case. Even if the Direction did not bind the tribunal at the time of its decision, it will certainly bind the tribunal if the case is returned to it.
17 The most obvious difference between the two is that the Direction must be followed by reason of s 499 of the Act, whereas the policy might be taken into account in the manner discussed in various decisions of the court. While this is a radical difference, its significance is lessened, and perhaps eliminated, in the present case, as it appears the tribunal may in truth have set out to give effect to the policy.
(e) Mr Loftus contended that the judgment in Aksu (supra) in relation to the finding that the Direction was binding on the Minister was obiter, in that it was not necessary for the purposes of His Honour's decision in that case. That argument appears to me, to be tenable. It is also arguable, that Aksu (supra) is distinguishable, in that it turns on a particular facts situation, and where the Minister made the relevant decision in reliance on an incomplete briefing paper.
(f) Assuming, though, that the finding of His Honour as to the binding nature of the Direction was not obiter, and assuming also that Aksu (supra) is not distinguishable, I consider that I should prefer the view of the Full Federal Court in Rokobatini (supra) and hold that the Direction is binding on this Tribunal.
(g) Even if the Direction is not binding, it unquestionably sets out the applicable policy. In paragraph 12 of his judgment in Aksu (supra), Dowsett J refers to the judgment of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 in the following terms:
12 Brennan J considered the matter in re-hearing the same matter, reported sub nom Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 - 641:
The Minister is free to exercise that power without adopting a policy as to the standards and values to which he will have regard in deciding particular cases. He is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, providing the policy is consistent with the statute. In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Cooke J (at 1298) held the effect of the relevant authorities to be:
"... that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision."
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies, which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute ... . Also, it would be inconsistent with (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be) ... . The Minister must decide each of the cases ... on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion in tact while guiding the exercise of a power ... .
(h) It follows then, that at the very least I should treat the Direction as policy, and to which I should, having regard to the decision of Brennan J in Re Drake (No 2) (supra) have regard. I note also that Brennan J in the same case stated that consistency in decision-making is desirable.
(i) As I understand the decision in Aksu (supra), Dowsett J considered that the Direction was invalid because it operated as a fetter on the Minister's discretion. Moreover, so His Honour found, it was couched in language which gave so high a degree of importance to the primary considerations, that it negated the effect of the non-primary considerations. At paragraph 23 His Honour said:
23 The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s.501
The validity of the Direction was considered by Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161. Dowsett J in referring to that judgment said, at paragraph 25 of Aksu (supra):
25 I turn now to the decision of Sackville J in Bustescu. At par 23 of his Honour's reasons, the relevant Direction is set out. There are only two primary considerations, namely the expectations of the Australian community and the interests of children. However, it seems that the former encompasses both community protection and expectation of removal. In par 21 of the Direction (see par 25 of the judgment) other issues are considered, including hardship. It is indicated that the Government considers that such matters should be taken into account but given less weight than primary considerations. It seems that there is no provision to the effect that "no individual consideration can be more important than a primary consideration ...". At par 37 et seq, his Honour considered the validity of the Direction, saying:
As I have noted, the Applicant contended that the Direction was invalid. That contention was founded on the proposition that the Direction, properly construed, prevents the decision-maker considering the merits of an individual case and was therefore inconsistent with s 200 of the Migration Act ... . According to Mr Game, the Direction has this effect because it provides that considerations other than primary considerations are to be "given less weight than the primary considerations" ... . It follows, so it was said, that where a decision-maker has to weigh a potential deportee's serious criminal record and the consequent expectation that he or she will be removed from Australia (a primary consideration) against hardship to that person (a non-primary consideration), the latter must yield to the former.
(j) Bustescu (supra) was considered by the Full Federal Court in Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698. I refer in this regard to paragraph 29 of the judgment in Lau (supra), reading as follows:
29. It is not necessary to set out parts of the General Direction. It makes clear that it is necessary to balance a number of important factors in reaching a decision as to deportation. A decision-maker is required to have a due regard to the important placed by the government on the two primary considerations nominated, but it states a balancing process should also be adopted, one which takes into account all relevant considerations. It is clear that it is open to a decision-maker to regard the primary considerations as not government the outcome in a particular case. It has been held that the Direction does not have the rigid operations as that for which the appellant contends: Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 (Sackville J). It is apparent that the Tribunal weighed factors affecting the appellant and his family, but that what tipped the balance was the serious nature of the crimes and the likelihood that he might re-offend.
(k) It must always be remembered that the Direction, in its terms states a consideration of the primary considerations alone does not suffice. The second, third and forth sentences of clause 2.2 of the Direction require a balancing process, in the following terms:
…. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the Direction to refuse or to cancel a visa….
(l) Clause 2.17 of the Direction, moreover, makes it clear that the other considerations must be taken into account in the balancing process. Nor indeed, does clause 2.17 purport to set out an exhaustive list of other considerations. On the contrary, it states in its terms that "[t]hese other considerations may include".
(m) It follows then that it is conceivable that when weighing all the relevant facts, non-primary or other considerations may be sufficient, depending on the facts, to outweigh the primary considerations and this could occur whether or not any of the primary considerations could correctly be categorised as relevant.
(n) In summary then, the Direction, which in its terms is directed at the Minister's delegates and this Tribunal, does no more or less than require the latter to weigh all of the various considerations, and to come to a decision on the balance of those considerations. I do not think that the fact that some of them are said to be primary requires an interpretation that they are all important, since if this were so, the others would be otiose.(o)It is then my view that the Direction does bind this Tribunal and, even if it does not, it should be considered as a clear statement of applicable policy."
Since my decision in Wang [supra] the Federal Court has held that the Direction is binding on the Tribunal; I refer in particular in this regard to clause 23 of the judgement of Whitlam J in Turini and Minister for Immigration and Multicultural Affairs N988 of 2000 handed down 29 June 2001; clause 23 of that judgement reads as follows:
"Part 1 of Direction No 17is, in my opinion, a valid exercise of the power given by s 499(1) of the Act. The alternative submission of counsel for the Applicant is that the Tribunal erred in its interpretation of paragraph 1.9 of the Direction because it regarded itself as bound to apply its terms. No doubt, it did, but this was not an error. The Direction was given to the Tribunal, and s 499(2A) of the Act obliges the Tribunal to comply with it."
It is clear that having regard to clauses 1.9 and 2.6 of the Direction that the Visa Applicant fails the character test; I note in this context that there was no evidence before me of countervailing good conduct. Indeed and as I have already indicated, Mr Dalla admitted that the Visa Applicant must fail the character test.
As regards the discretionary powers contained in part 2 of the Direction, clause references in this clause 21 and following refer to numbered clauses in the Direction. Clause 2.3 provides that the primary considerations are:
"(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 relationship between a child or children and the person under consideration, the best interests of the child or children."
Clause 2.3 must be considered in the light of clause 2.5 of the Direction 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:
(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)."
I am prepared to accept that recidivism is not a real risk, since if the Visa Applicant is granted a visa, he will have no need to continue his train of dishonest behaviour.
As to deterrence, Mr Davies gave evidence to the fact that conduct of this nature is particularly prevalent in Lebanon. I note that before coming to Australia in the first instance, the Visa Applicant sold assets sufficient to yield him a sum of money, which would tend to indicate that he always intended to remain in Australia.
Further as to deterrence and the expectations of the Australian community I said in paragraphs 8(f) and 8(g) of Re Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496:
f) As to deterrence Dr Garg contended that there is no evidence as to whether refusals of visas do, or do not deter conduct of this nature. As I have said on previous occasions, it is unlikely in the nature of things that empirical evidence would be available as to the extent to which this is so. But certainly, the grant of a visa in these circumstances would send entirely the wrong message. I refer in this context to paragraph 84 of the decision of Deputy President Chappell in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 which reads (in part) as follows:
"The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country".I refer also to paragraph 47 of the decision of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, which reads as follows:
"47. The Applicant in his evidence spoke of others obtaining false passports in South Africa and travelling to countries using the false documentation. He spoke of people to his knowledge living in Australia by virtue of the use of false identity material. These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application, which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered".(g) As to the expectations of the Australian community, it is of course trite to say that the Australian community expects non-citizens to obey its migration law. I refer in this regard to Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554 (paragraph 27), Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790 (paragraphs 44 and 45) and Re Santos and Minister for Immigration and Multicultural Affairs [2000] AATA 567 (paragraph 71)."
Australia clearly expects non-citizens to obey its laws and the Visa Applicant in his immigration conduct consistently and repeatedly disregarded Australia's immigration law. Nevertheless, I do consider that the Australian community would expect me to apply the Direction with a reasonable degree of compassion.
The Applicant's evidence was that despite her own Lebanese origin and the fact that she speaks Arabic, she would never consider settling in Lebanon. There would be no work for her in a country whose economy (as confirmed by Mr Davies in his evidence) continues to decline. The Visa Applicant lives in a village, which is not far from the camps of Palestinians engaged in the conflict with Israel.
The continued separation of the Applicant and the Visa Applicant is undeniably causing her great hardship personally and economically. If the Visa Applicant were to come to Australia he could, so she said, work for one of her relations in one of the various businesses conducted by them and in addition he could help with the children. The improved financial circumstances of the family as a whole would enable her to return to work (taking her off social security) and thus enabling her to earn a reasonable income. I accept that she has built up a career for herself in Australia, which could not be duplicated in Lebanon.
Would it have been not for the children, this application would have had little or no prospect of success. But the presence of two small children, who are Australian citizens, must be a weighty consideration in favour of the grant of this application. Clearly their interests would be best served by their being with both of their parents. There was no evidence before me, which would contradict the assertion that the Visa Applicant is a devoted father. Nor was there any evidence before me, which would suggest that this couple had two children within a very short space of time purely in order to advance their prospects of success in these proceedings. The Applicant said that she had been led to believe, prior to the return of the Visa Applicant to Lebanon, that if he returned to Lebanon voluntarily, he would be allowed to return to Australia to rejoin his family. That view might have been naive and it may have been over optimistic but it was not suggested to me that I should disbelieve it.
The balancing exercise in a matter such as this is not easy. The conduct of the Visa Applicant has been such that he must be treated as being a person who is not of good character, and indeed clause 2.6(c) makes it clear that his conduct was very serious. The Applicant's own conduct is such that her evidence must, as I have indicated, be treated with some reserve. But this is a case where the hardship factor is particularly severe, and the interests of the children may favour their staying in Australia with both of their parents. A matter as finely balanced, as this should in my view be resolved in favour of the compassionate solution. It need hardly be said that the Visa Applicant's behaviour has been such that he should consider himself fortunate. In effect he sought (dishonestly) to "jump the queue". He persisted in his dishonesty before the Tribunal. The evidence of the Applicant on his behalf indicates a degree of faith in him and his ability to earn a living, which may or may not be justified.
Accordingly the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a Direction that the visa application not be refused under section 501 of the Migration Act 1958.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of J Block, Deputy President
Signed: [sgd] R Quinn .....................................................................................
AssociateDate/s of Hearing 17 August 2001
Date of Decision 19 September 2001
Counsel for the Applicant Mr Dalla
Solicitor for the Respondent Mr N Cureton
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