Al Taleb and Minister for Immigration and Multicultural and Indig Enous Affairs

[2003] AATA 935

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 935

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/165

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Rajaa Al Taleb

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date22 September 2003

PlaceSydney

Decision  The Tribunal affirms the decision under review.

...............................................

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – spouse visa – subclass 309 (permanent) spouse visa – character test – examination of the Visa Applicant’s immigration history – examination of the Visa Applicant’s protection visa claims – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant – Visa Applicant does not pass the character test – Tribunal has concerns as to the credibility of the Visa Applicant’s evidence – held that the Tribunal’s discretion should not be exercised in favour of the Visa Applicant – decision of the Respondent affirmed.

Migration Act 1958 ss 499, 499(1), 501, 506, 501(6)(b)(c)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Stella Georges and Minister for Immigration and Multicultural Affairs [2002] AATA 89

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Wan v Minister for Immigration and Ethnic Affairs (2001) 107 FCR 133

REASONS FOR DECISION

22 September 2003 Mr RP Handley, Deputy President          

1.      This is an application by Rajaa Al Taleb (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 24 December 2002, to refuse the grant of a subclass 309 spouse (permanent) visa to the Applicant’s spouse, Yosef Al Taleb (“the Visa Applicant”).

2. At the hearing of this matter, the Applicant was represented by Dr Mohamed Al Jabiri, Migration Agent, and the Respondent was represented by Andrew Grimm, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), including supplementary s 37 documents (“the S Documents”), together with the documents tendered by the parties at the hearing. Oral evidence was given by Rajaa Al Taleb in person and Yosef Al Taleb and Allan Davis gave evidence by conference telephone.

Background

3.      The Applicant, Rajaa Al Taleb, was born in Tripoli, Lebanon, on 1 July 1963, and is aged 40.  She migrated to Australia with her family in 1988.  On 3 January 1989, she married her first husband, Walid El-Nachar.  This relationship ended in divorce on 24 December 1995.  There were three children of this relationship: Omar El-Nachar, born on 11 January 1991 and now aged 12, Fatima El-Nachar born on 6 September 1992 and now aged 11, and Mirvat El-Nachar, born on 9 May 1995, and now aged eight.  The three children reside with their mother in Australia.  Mrs Al  Taleb was granted Australian citizenship on 24 November 1992 (T p65).

4.      On 13 April 2000, Mrs Al Taleb married her second husband, Aly Sabia Bin Aly Nakdali (T p50).  This marriage ended in divorce on 19 June 2001.  There was one child of this relationship, Ali Nakdaly, born on 17 January 2001 and now aged two.

5.      The Visa Applicant, Yosef Al Taleb, was born in Al Harah, Syria, on 25 April 1966 and is aged 37 (T p40).  On 1 June 1990, Mr Al Taleb married Nihad Al Nasr.  That relationship ended in divorce on 7 May 2001.  There were four children of that relationship: Nora Al Taleb, born on 29 June 1991 and now aged 12, Etab Al Taleb, born on 30 September 1993 and now aged nine, Mohammed Al Taleb, born on 29 January 1996 and now aged seven, and Mahmoud Al Taleb, born on 26 September 1998 and now aged four.  The four children are currently residing in Syria with their grandmother (T p48).

6.      On 9 September 2000, Mr Al Taleb arrived in Australia on a business short stay (subclass 456) visa, granted to him on 26 August 2000 (T p69) for the purpose of undertaking kick-boxer training.  Mr Al Taleb was one of a group of nine who arrived in Australia on that date for that purpose.  Their visas permitted a stay of one month.  Training was to be provided by Robert Wiresmith of Thunderlegs Kick-boxing and Promotions in Sydney.  On 6 October 2000, Mr Al Taleb applied for a protection (Class XA) visa on the basis that he was a member of the Muslim Brotherhood Party (S p201) and in fear of his life from the Government of Syria.  Another seven members of the group also applied for protection visas.

7.      On 1 April 2001, Mrs and Mr Al Taleb met at Lakemba, Sydney (T p52).   They were both still legally married at the time of their meeting.  On 11 April 2001, Mr Al Talib’s application for a protection visa was denied on the basis that he was not a person to whom Australia owed protection obligations under the Refugees Convention (S p253).  He was informed of this decision on 12 April 2001 (S p245).   Shortly thereafter, Mr Al Taleb applied to the Refugee Review Tribunal (“RRT”) for a review of that decision.

8.      On 11 June 2002, Mrs and Mr Al Taleb were married at the Lakemba Mosque (T p74).    On 5 July 2002, their son, Ahmad Al Taleb, who is now aged one, was born (T p76).

9.      On 8 July 2002, Mr Al Taleb withdraw his application to the RRT (T p77).  

10.     On 24 July 2002, Mr Al Taleb departed Australia and returned to Syria. On 29 July 2002, he lodged an application for a subclass 309 spouse (permanent) visa at the Australian Embassy in Beirut.   Mr Al Taleb was subsequently interviewed by a Senior Migration Officer at the Embassy on 24 December 2002 (T p9). 

11. On 24 December 2002, a delegate of the Respondent decided to refuse the grant of a visa to Mr Al Taleb on the basis that he did not pass the character test because of his past and present general conduct and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T p15).  On 14 January 2003, Mrs Al Taleb lodged an application for a review of the delegate’s decision by the Tribunal.

Relevant Law and Policy

12. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test, set out in s 501(6), provides relevantly that a person does not pass the character test if:

…

(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has  been or is involved in criminal conduct;  or

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)the person’s past and present general conduct;

the person is not of good character;…

13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..

14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

15. The issue for the Tribunal to determine in this case is, therefore, whether Mr Al Taleb is not of good character having regard to first, whether he has had an association with someone else, or with a group organisation whom the Minister reasonably suspects has been involved in criminal conduct, or second, his past and present general conduct, so as to be precluded from the grant of a subclass 309 (permanent) visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

Evidence

Rajaa Al Taleb (the Applicant)

16.     Mrs Al Taleb provided a declaration dated 29 May 2003 (A1).   She said in 2001 she was divorced from her previous husband and was having problems in raising her four children.  She was looking for someone to assist and support her with raising her family.  She was introduced to Mr Al Taleb and, within a period of about three months, they got to know each other and he established a good relationship with her children who came to regard him as their father rather than their biological father.

17.     Mrs Al Taleb said her husband is a good man – he is of good behaviour and character.  For example, he always remembers the children’s birthdays.  Everyone loves and respects him.  He believes in God and looked after them all very well when he was here in Australia.  At the moment, she is going crazy trying to look after her five children.  She has no one to assist her in Australia and that was the reason for her remarrying.  Her parents have both passed away and although she has two brothers and two sisters, she does not see them.  However, her sister in Melbourne looked after her four children while she was in London.  She does not even drive.  Her children are often sick.  Her oldest son has asthma and has had to be hospitalised. 

18.     Mrs Al Taleb said her flat was broken into after her husband left the country and she was threatened at knife point.  A week later, she was robbed.  She reported this to the police.  When she went to London to visit her husband last month, taking her youngest child with her, thieves broke in through a hole in the roof of her flat.  She is still waiting for a real estate agent to fix the hole.  She needs a man to deal with these problems for her.

19.     Mrs Al Taleb said she went to London so that her husband could see her and their son.  She stayed five weeks and they were very happy and she did not want to leave.  However, she was worried about her four children back in Australia who had been cared for by her sister in Melbourne.  Her husband was also very happy to see them when they arrived at the airport in London and he organised a birthday party for their son.  After she returned to Australia, her husband rang to say that he was sick for a week and could not go back to his accommodation for a while because it was so empty after they left.

20.     Mrs Al Taleb said if her husband was not permitted to come to Australia, she will commit suicide and leave the children to be looked after by the Government.  She has already had a nervous breakdown after her interview with the Department.  She is currently taking tablets to calm her down.  She and her husband speak on the phone a lot – her last telephone bill was $500.

21.     Mrs Al Taleb said she is dependent upon social security payments for her income.  Her husband has sent her money on two occasions from London which was given to him by the friend with whom he is staying.  Her previous husband pays Mrs Al Taleb $10 per week in child support payments.  Her husband’s friend in London paid for her husband to fly to London and is supporting him there.  The friend wanted her husband to advise on improvements to his house.  However, Mrs Al Taleb said her husband did not go to London to work.  He went on a visitor’s visa valid for six months.  He is just helping out his friend and helping paint his friend’s house.   He is not earning any money and under the terms of his visa he is not permitted to work. Her husband’s mother and other members of his family are looking after his four children in Syria.

22.     Mrs Al Taleb said her husband’s friend is very wealthy and paid for her return flight to London.  While she was in England, the friend also gave her £700 for her to buy presents for her children.

23.     Mrs Al Taleb said she was aware of her husband’s migration status from when she first met him because he told her of this.  She was aware she was marrying a man who did not have permanent residence in Australia.  She said her husband’s UK visa will expire next month and, if he is not granted a visa to come to Australia, he will go to Lebanon.  Her husband has had problems in Syria and the regime there is very hard to deal with.

24.     In her declaration (A1), Mrs Al Taleb said she was aware her husband had problems with the Syrian authorities and that was why he came to Australia.  She knew he was worried about what would happen to him if he had to return to Syria because he believed he was known to the Syrian Intelligence who were greatly feared and have a bad reputation for inflicting torture.  However, after Mrs Al Taleb gave birth to their child, he decided to return to Syria to see his own children, having first asked his family there to intervene with the Syrian authorities to see if he could return without being arrested.  He therefore withdrew his application to the RRT.

25.     Mrs Al Taleb said since the refusal of her husband’s spouse visa application, she has become depressed and has had to seek medical help.  She has also developed problems with her leg.  Her children have become upset at her husband’s absence and keep asking where their father is.

Yosef Al Taleb (the Visa Applicant)

26.     Mr Al Taleb provided a declaration dated 6 June 2003 (A2).  Mr Al Taleb said he came to Australia because he was persecuted in Syria as a result of his political activities.  A member of the Muslim Brotherhood contacted Mr Al Taleb and advised that his life was in danger and that he should go to see Mr Samer Halima who would assist Mr Al Taleb in leaving the country.  He did not ask Mr Halima specifically to arrange entry for him into Australia – the purpose was to enable him to leave Syria. Mr Al Taleb gave Mr Halima some money and his passport in order to obtain a ticket and visa for him to enable him to leave the country.  About six weeks later, Mr Halima took him for an interview at the Australian Embassy in Beirut.  Mr Al Taleb was surprised when, before they got to the Embassy, Mr Halima briefed him as to what he should say at the interview.  Mr Al Taleb said he had no choice but to lie as instructed.  He thought this was the only way to get out of the country because his life was at risk.  He acknowledged that as a Muslim, his faith does not allow him to lie and he apologised for his lying during the interview at the Embassy.   Mr Al Taleb said he did not know the others for whom Mr Halima also obtained visas and who were from different provinces in Syria.  They were also interviewed.

27.     Mr Al Taleb was advised to be cautious on leaving the country and to pay an official at the airport US$2,000 to facilitate his passage through the security and passport checks.  On the plane, he saw others who had been interviewed at the Australian Embassy in Beirut.  When they arrived at Sydney airport on 9 September 2000, there was no one to meet them as they had been promised.  A few days later, when he went to pray at the Lakemba Mosque, he asked some Syrians where he could obtain advice about seeking asylum.  He was advised to consult Raghid Alchikh, a migration agent. 

28.     Mr Al Taleb went to see Mr Alchikh, who, when Mr Al Taleb explained about his situation in Syria, advised him to lodge a protection visa application.  Mr Al Taleb said his application was a genuine one and he only withdrew his application for a review by the RRT when he decided to return to Syria to check on the welfare of his children.  He felt able to return to Syria because his parents had paid a bribe to the authorities there to clear his name and he was told that he would be met by someone at the airport in Syria who would facilitate his passage through Customs and Immigration.

29.     Mr Al Taleb said despite there being a new President in Syria and some reforms having been undertaken by the Government, everything is much the same and he is not sure of the future in Syria.  He decided to try and stay away from his country until the situation changes and, therefore, contacted his friend in London who invited him to stay and paid for his flight to London.  Mr Al Taleb has a UK visitor visa valid for six months.  His friend is very wealthy and generous and has paid for all Mr Taleb’s expenses.  He is a relative and they have been close friends for at least 10 years.  It was at his suggestion that Mrs Al Taleb came to London to visit Mr Al Taleb so that he could see her and his son.  His friend paid for her return ticket and gave her money while she was in London to buy presents for their children.

30.     Mr Al Taleb said, as a man, it is expected that he should do a man’s work and provide support for his family.  The care of children is the prime responsibility of the mother.  Since his divorce, he has not wanted to know anything about his former wife.  His children in Syria are being cared for by his mother and other members of his family.  Mr Al Taleb said even before the divorce, he had problems with his wife and she left the children immediately after he left to travel to Australia.  However, he knew that his mother would look after the children in her absence.  When Mr Al Taleb returned to Syria in July 2002, he went to check on his kids.  If he is granted a visa for Australia, he knows his mother will continue to look after his children and he will send her money from Australia to help support them.  He hopes he would also be able to visit them from time to time even if he has to continue paying bribes in order to enter the country.

31.     Mr Al Taleb agreed that he had answered “No” to question 6 of the spouse visa application  “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?”  He said he had never lodged an application for entry into Australia that had been refused before he came to Australia.  When it was pointed out to him that his protection visa application had been refused, he said he had not understood this onshore application as being referred to in the question.  Mr Al Taleb asked that the Tribunal should take his situation into consideration including that his wife was sick and “has psychological symptoms”.

32.     In his declaration (A2), Mr Al Taleb said he considers himself a devout Muslim of moderate ideals and attitudes.  His involvement with the Muslim Brotherhood started in 1986 when he was studying the Islamic Sharia at Damascus University.  However, his involvement was limited to attending meetings, discussions held in Mosques and private homes, and distributing related information booklets.  In 1989, he was arrested by Syrian Intelligence and subjected to interrogation and torture over a period of two months.  As a result, he was dismissed from the University and went to work in a grocery shop owned by his family.  When at the beginning of the year 2000, Syrian Intelligence launched a campaign of arrest against members of the Muslim Brotherhood, he was advised to flee by a prominent member of the Brotherhood whom he knew.  He was given money and documents and introduced to Mr Halima, whom, he was told, would procure him an Australian visa.  Mr Al Taleb said he was fearful of what would happen if he was arrested by the Syrian Intelligence and for that reason consented to the events which resulted in the issue to him of an Australian visa.

33.     Mr Al Taleb said when he returned to Syria in July 2002, he avoided any contact with the Muslim Brotherhood or with his divorced wife’s family, fearing that they might bring harm to him or his children.  He sold a three ton truck which he had owned and purchased a taxi operating in the City of Damascus to support him and his children.  Around Christmas 2002, he was called for an interview at the Australian Embassy in Beirut.  The interview was short, lasting between 15 and 25 minutes.  He felt that the official and lady interpreter were in a hurry and conducted the interview as a routine duty they had to discharge, having decided beforehand that the lie concocted by Mr Halima was sufficient to warrant the rejection of his application.  Mr Al Taleb felt humiliated by the interview.  He emphasised that he had applied for a protection visa because of the persecution he had suffered in Syria.  He did nothing to deceive others except in securing his escape from persecution and “the clutches of a terrible regime”.  To violate any Australian law “would be against the values and tenets of my religion and religious ethics and morals”.

34.     Mr Al Taleb reiterated his apology and regret for what he was forced to say in the year 2000.  He hopes to return to Australia to start a safe and stable decent life and to provide his Australian family with care and support.

Allan Davis

35.     At the relevant time, Mr Davis was the Principal Migration Officer (Compliance) at the Australian Embassy in Beirut.  He said he has worked elsewhere in the Department but has received special training in compliance work.  Mr Davis interviewed Mr Al Taleb in relation to his spouse visa application at the Australian Embassy on 24 December 2002, having first reviewed the file documents, including those from Australia, before conducting the interview.  The interview would have been up an hour long. 

36.     Mr Davis was referred to his document “Recollection of Interview” (R1) – a recollection of his interview with Mr Al Taleb.  Mr Davis asked Mr Al Taleb about the whereabouts of his former wife in Syria in order to find out where their four children were at that time.  There appeared to be some confusion with Mr Al Taleb’s answers.  At first, he said their children were living with his wife in Syria and but he did not know where she was.  Then, he said he had been looking after the children since returning to Syria and the children were not with their mother.  Moreover, he later acknowledged that he was aware of where his wife was living.

37.     Mr Davis said the money which Mr Al Taleb claimed that he was given by a person at the mosque to enable him to leave Syria, US$10,000, was a large sum, especially in a country like Syria.  Mr Al Taleb later said the person who gave him the money was a sheikh who helped him obtain the passport, whom he would repay.

38.     Mr Davis said when making his decision as a delegate of the Respondent to refuse Mr Al Taleb’s spouse visa application, he was applying the character test provisions and not determining whether Mr Al Taleb’s claims of persecution were credible.

39.     In cross-examination, Mr Davis acknowledged having seen a letter from the Mayor of Al Harah saying that Mr Al Taleb’s children were in the care of his mother (T p91).   Nevertheless, Mr Davis considered that Mr Al Taleb had a stronger relationship with his four children in Syria than with his newly born child in Australia.  He did, however, also take into consideration Mrs Al Taleb’s four children in Australia.

40.     Mr Davis said when he interviewed Mr Halima, who made the arrangements for the group proposing to attend for kick-boxing training in Australia, Mr Halima confirmed to Mr Davis that Mr Al Taleb was part of the group travelling to Australia for this purpose.

Submissions

Applicant

41.     Dr Al Jabiri, for the Applicant, noted that the primary decision-maker did not rely on the association ground as justification for finding that Mr Al Taleb did not pass the character test.  Dr Al Jabiri said the Applicant acknowledges that there was a visa scam operated by Mr Halima but said there are no grounds to support a determination based on the association ground.  Mr Al Taleb feared for his safety and merely sought a visa for Australia through Mr Halima.  Mr Al Taleb paid the money to Mr Halima who organised everything else including completing the visa application and placing a signature on that form.  Mr Al Taleb did not sign the form and did not himself make a false or misleading statement on an application form.  His conduct cannot be said to be so reprehensible or abhorrent that he should not be permitted to enter Australia.

42.     With respect to Mr Al Taleb’s general conduct, Dr Al Jabiri reiterated that Mr Al Taleb’s visa application form was a forgery as well as his signature.  Mr Al Taleb was a person in fear, seeking to flee persecution.  While there was a technical breach of Australia’s migration laws, Dr Al Jabiri submitted that this would not, of itself, be sufficient to lead a decision-maker to reject a claim for a protection visa.  Dr Al Jabiri noted that Mr Al Taleb has demonstrated his moral qualities by returning to Syria on 8 July 2002 and withdrawing his application to the RRT because of his concern for his children in Syria.  Moreover, those who know Mr Al Taleb have provided statutory declarations attesting to his good character.  Dr Al Jabiri submitted that in terms of what the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 said at paragraph 9 about the concept of good character, it would not be for the public good to refuse Mr Al Taleb’s visa.

43. With regard to the exercise of the discretion in section 501 (1) of the Act, Dr Al Jabiri said Mr Al Taleb’s visitor visa application was not prepared by him. His only aberration was to not to tell the truth in his interview at the Australian Embassy in August 2000 when the answers he gave were those in which he had been coached by Mr Halima prior to the interview. This was an isolated event under the mitigating circumstances of his fleeing persecution and fearing for the safety of his life, as his subsequently abiding behaviour in Australia showed. Dr Al Jabiri doubted the deterrent effect of the refusal of a visa in such a case and said that, in any event, the best interests of the children in Australia and Mr Al Taleb’s Australian family unit must be given paramount consideration. Dr Al Jabiri noted Article 23.1 of the International Covenant on Civil and Political Rights which provides that the family is the natural and fundamental unit of society.

44.     Dr Al Jabiri said Mr Al Taleb went to the United Kingdom to visit his friend with an interest in working there but discovered that his visa did not permit him to work.  Dr  Al Jabiri pointed to a mistake in the Applicant’s chronology recording that Mr Al Taleb travelled to the United Kingdom on a six months contract for painting and decorating work.  John Bulbeck, of Dr Al Jabiri’s office, provided a statement dated 21 August 2003 (A4), to the effect that this was a drafting error arising from a communication difficulty because Mr Bulbeck did not speak Arabic.

45.     Dr Al Jabiri said that cultural considerations should be taken into account.  First, Syrian people give generously to others to assist those in need.  Thus, the fact that Mr Al Taleb was given US$10,000 to assist him in escaping Syria should not be considered that extraordinary.  Secondly, in Middle Eastern families, the children are the children of the whole family.  This is unlike the situation in Australia where the parents are responsible for their own children.  Thus, Mrs Al Taleb is alone in bringing up her family and needs assistance.  If Mr Al Taleb is not permitted to come to Australia, her children will grow up without a father.  The family needs to be reunited in Australia.  Thirdly, in Syria, many things cannot be done without a bribe.  It is part of the normal course of events.  When Mr Al Taleb returned from Australia, he went first to Jordan to await his family giving him the green light to enter Syria after they had paid a bribe.

46.     Dr Al Jabiri noted that at the interview on 24 December 2002, Mr Davis emphasised to Mr Al Taleb that he must tell the whole truth.  Mr Al Taleb did so and was open and frank with Mr Davis about lying in respect of his first application for a visitor visa.  Dr Al Jabiri said Mr Al Taleb is very ashamed and embarrassed about his actions with respect to the visitor visa but objectively, this was a relatively minor incident.  Mr Al Taleb was seeking to escape persecution and lied in order to achieve this.

Respondent

47.     Mr Grimm, for the Respondent, commented first on a number of issues of fact.  He suggested that Mr Al Taleb may be working in London in breach of the conditions of his visitor visa.  Mr Al Taleb gave evidence that he went to London to help his friend with painting and decorating and that his friend has provided him with support and accommodation.  Mr Grimm noted that there were inconsistencies in the oral evidence given by Mr and Mrs Al Taleb as to how much the wealthy friend had given Mrs Al Taleb: Mr Al Taleb said the friend had given Mrs Al  Taleb £1,000 whereas Mrs Al Taleb said he had given her £700.  The more plausible explanation is that Mr Al Taleb is actually working in London.

48.     Mr Grimm said Mr Al Taleb was part of the group who obtained visas as a result of a scam.  He approached Mr Halima to participate in the scam and the signatures on Mr Al Taleb’s authorisation to a migration agent to act in respect of his protection visa application (T p64) and his purported signature on his application for a business visitor visa (S1) are alike and suggest that he did in fact sign the business visitor visa application.  The Respondent also contends that it is not credible for Mr Al Taleb to claim that he was forced to lie in respect of his visitor visa application.  He was aware that the information he gave Mr Davis at his first interview at the Australian Embassy, in respect of which he had been coached by Mr Halima, was false.  Mr Al Taleb made these false and misleading statements knowing that he had a responsibility to tell the truth.

49.     Mr Grimm doubted Mr Al Taleb’s evidence about his deciding to return to Syria in July 2002 because of his concern for his children.  He has given evidence that, after his divorce, he was comfortable with his mother looking after his children and, indeed, he has left his children in the care of his relatives for a number of years.  Even now, while he is in London, apparently not earning a living, his family are caring for his children in Syria.  Mr Grimm suggested that it is also not credible that Mr Al Taleb had to pay a bribe to re-enter Syria.  The Respondent contends that there is no impediment to his returning to Syria.

50.     With regard to the Respondent’s contention that Mr Al Taleb does not pass the character test by reason of the association ground, Mr Grimm said the Respondent does not press this ground strongly because Mr Al Taleb was not the organiser of the visa scam.  However, he did take part in the scam and he must have been aware that he was circumventing the usual procedures given the large sum of money involved.  Clearly, he was aware of the scam and was prepared to benefit from it.  With regard to Mr Al Taleb’s claim of fearing persecution in Syria, Mr Grimm noted that Mr Al Taleb had subsequently returned to the country where he claimed to fear persecution.

51.     With respect to Mr Al Taleb’s general conduct, Mr Grimm submitted that Mr Al Taleb must accept responsibility for the business visitor visa application form even if he did not complete or sign it.  The provision of such false and misleading statements is regarded by the Government as very serious.  Mr Grimm also noted that Mr Al Taleb failed to reveal in his spouse visa application that his application for a protection visa had been refused (T5 p45).  Mr Grimm submitted that Mr Al Taleb’s lack of observance of the truth in his dealings with the Department and his conscious disregard of Australia’s immigration laws were to mislead the Respondent and secure an advantage for himself.  This demonstrates that his enduring moral qualities are so deficient that he ought to be refused entry.  Thus, it should be determined that he does not pass the character test.

52. With regard to the exercise of the discretion in section 501 (1), Mr Grimm contended that the making of false and misleading statements in connection with entry or stay in Australia is to be regarded as a very serious matter and Mr Al Taleb’s conduct indicates a disregard for Australia’s immigration laws in order to secure an advantage for himself. The refusal of a visa would serve as a general deterrent to others who might be contemplating engaging in similar misconduct. The Australian community would not expect that Mr Al Taleb would be allowed to enter and remain in Australia. With regard to the best interests of the children, of whom there are nine, with Mrs Al Taleb also currently being pregnant, Mr Grimm said that on balance the Respondent contends that it is in the best interests of the children that Mr Al Taleb remain with his Syrian children. He has spent very little time with his Australian born son with whom his relationship is not a strong or significant one and whose interests are outweighed by the needs of the Syrian children. Moreover, with respect to Mrs Al Taleb’s four other children, they only knew Mr Al Taleb for 15 months prior to his departure from Australia.

53. With respect to other considerations, the Respondent accepts that the relationship between Mr and Mrs Al Taleb is a genuine one. The Respondent acknowledges that Mrs Al Taleb will face some hardship if her husband is refused a spouse visa in that she will be denied her husband’s help and support in raising her children including their joint child. However, the Respondent submits that the hardship would not be of such magnitude that it outweighs the primary considerations pointing towards the refusal of the application. Thus, the Respondent submits that the section 501(1) discretion should not be exercised in favour of Mr Al Taleb.

Application of the Law and Findings

54. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(b) and (6)(c)(ii), Mr Al Taleb passes the “character test” having regard to his associations and past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the Applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an Applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry …

55.     In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).

56. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Al Taleb, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

57.     Paragraph 1.5 of part 1 of Direction  No 21 states:

1.5      The meaning of “association” for the purposes of the Character Test encompasses a very wide range of relationships including having an “alliance” or a “link” or “connection” with a person, a group or an organised body that is involved in criminal activities.   “Association” does not require actual membership of a group or an organised body that is involved in criminal activities.  In establishing criminal association, the decision-maker may have regard to the following:

(a)the degree and frequency of association of the non-citizen had or has with the individual, group or organisation;

(b)       the duration of the association; and

(c)       the nature of the association.

58.     Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test.  Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

59.     Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings.   The Tribunal accepts Mr Al Taleb’s evidence that as a result of his political and religious activities in Syria, he was afraid that he might suffer persecution by Syrian Intelligence, having previously been arrested and tortured.  In early 2000, he was advised to flee the country, handed US$6,000 for this purpose, and introduced to Mr Samer Halima (A2) with a view to Mr Halima assisting him to obtain a visa to travel to Australia.

60.     The Department’s evidence indicates that Mr Halima made arrangements for a group of Syrians to visit Australia, ostensibly for the purpose of attending kick-boxing training at a Sydney gym.  The group were all supposed to own gyms in Syria, providing training in various aspects of the martial arts.  All were interviewed at the Australian Embassy in Beirut: one withdrew because his passport was “retained” when he did not pay his “fee” and nine were approved and granted subclass 456 business visitor visas.  This was in fact a visa scam and, of the nine Syrians who subsequently travelled to Australia, none attending kick-boxing training, only one returned to Syria, and the others lodged protection visa applications.

61.     Like other members of the group, Mr Al Taleb was interviewed by Allan Davis, Principal Migration Officer (Compliance) at the Australian Embassy in Beirut, to establish his bona fides prior to the issue of the subclass 456 visa.  Mr Al Taleb’s evidence is that Mr Halima took him to the Embassy for the interview having coached him in how he should respond to questions.  Mr Al Taleb was not a gym owner as he then claimed.  His subclass 456 application falsely claimed that he was an “instructor” and that he intended to attend “Training kick and Thai boxing Seminar” and that he proposed to stay in Australia for 75 days (S1).  Mr Al Taleb acknowledges that the application contained false statements and that he lied at the interview at the Embassy with Mr Davis.  However, Mr Al Taleb denies having filled out, signed and lodged the visa application.  He claims this was done by Mr Halima.  While Mr Al Taleb may not have completed the visa application form, the Tribunal finds that Mr Al Taleb probably signed the form: the signature (S1 p187) appears to be the same as that on an authorisation by Mr Al Taleb for Dr Al Jabiri to act as agent dated 22 July 2002 (T p64).

62.     Mr Al Taleb arrived in Australia on 9 September 2000 and, on 6 October 2000, applied for a protection visa.  That application was refused on 11 April 2001 and Mr Al Taleb applied to the RRT for a review of the decision.  The decision-maker was not satisfied that Mr Al Taleb’s claims amounted to a well-founded fear of persecution in Syria for a Convention reason (Sp253).  The Tribunal makes no findings as to the veracity of Mr Al Taleb’s claims which were not the subject of these proceedings.  Mr Al Taleb subsequently withdrew his application to the RRT on 8 July 2002 prior to returning to Syria on 24 July 2002.

63.     On 1 April 2001, Mr and Mrs Al Taleb met at Lakemba.  They were both legally married at the time.  They were subsequently divorced and married on 11 June 2002.  Mrs Al Taleb has four children from her previous marriage and one son by Mr Al Taleb, born on 5 July 2002.  She gave evidence that she is again pregnant by Mr Al Taleb.  The Tribunal accepts that this is a genuine marital relationship.

64.     Mr Al Taleb gave evidence that he returned to Syria on 24 July 2002 because of concerns for his four children there.  His children were being cared for by his family, principally by his mother.  Mr Al Taleb claims that his family paid a bribe in order to secure his safe re-entry into Syria.  On his return, he worked as a taxi driver until travelling to London in April 2003.  Mr Al Taleb gave evidence that he went to London at the invitation of a wealthy friend to assist with the painting and decorating of his house.

65.     It is not clear to the Tribunal whether Mr Al Taleb has undertaken paid employment in London and whether this is in breach of any visa conditions to which he may be subject.  It seems, at least, that Mr Al Taleb’s friend paid for his return travel to London and for his accommodation and support in London.  The friend also paid for Mrs Al Taleb to visit her husband in London in June 2003, staying for a period of five weeks.  Both Mr and Mrs Al Taleb gave evidence that the friend gave Mrs Al Taleb spending money for the purchase of gifts for her children while she was in London.  However, they differed on the amount she was given, Mr Al Taleb stating that she was given £1000 and Mrs Al Taleb stating that she was given £700.

66. With regard to the application of the character test, the Tribunal notes that the Respondent does not press the “association” ground in s 501(6)(b) strongly. In the Tribunal’s view, the evidence does not establish an association of the kind contemplated by paragraph 1.5 of Direction No 21. The evidence shows that Mr Al Taleb obtained a business visitor visa through a “scam” but not that he was otherwise associated with a person, group or organisation involved in criminal activities.

67. The Respondent submits, in the alternative, that Mr Al Taleb does not pass the character test by reason of his past and present general conduct, pursuant to s 501(6)(c)(ii). The Tribunal has found that Mr Al Taleb’s application for a business visitor visa contained false statements and that he lied at an interview at the Australian Embassy in relation to this application. Mr Al Taleb has sought to justify his actions by reason of his urgent need to flee further persecution in Syria. The Tribunal notes that his application for a spouse visa also contained the false statement that he had not been refused a visa in Australia (T p45) when, in fact, his protection visa application was refused.

68.     In the light of the guidance provided by paragraph 1.9 of Direction No 21 and the seriousness of Mr Al Taleb’s misconduct in seeking to mislead the Respondent, particularly in relation to his business visitor visa application, the Tribunal finds that Mr Al Taleb does not pass the character test by reason of his past general conduct.  The Tribunal also has concerns about the credibility of Mr Al Taleb’s evidence as to the object of his visit to London and as to his denial of the suggestion that he is working there.  Moreover, the Tribunal finds it strange that Mr Al Taleb should go to London for six months when he returned to Syria because of his concern over the welfare of his four children in Syria.  While the Tribunal accepts that caring for children may be more of a family responsibility in Syria than in Australia, the Tribunal questions the plausibility of Mr Al Taleb’s evidence that he is merely a visitor in London and, therefore, presumably not providing for the support of his children in Syria nor indeed for his young son in Australia.

69. Having decided that Mr Al Taleb does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Al Taleb. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

70.     Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)      the protection of the Australian community, and members of the community;

(b)      the expectations of the Australian community; and

(c)      in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

71.     With regard to the protection of the Australian community, paragraph 2.4 states:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…

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

(a)       the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

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

74.     With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.

75. With regard to the first primary consideration, in the Tribunal’s view, the making of a false business visitor visa application and lying at interview with the Principal Migration Officer, Mr Davis, should be regarded as very serious matters. As the Tribunal has emphasised on many occasions, “the effective administration of the Act and Regulations is dependent on the Respondent being provided with truthful and correct information by Applicants desirous of obtaining entry to Australia” (Deputy President Purvis in Re Stella Georges and Minister for Immigration and Multicultural Affairs [2002] AATA 89 at para 36). Nevertheless, Mr Al Taleb has expressed his regret and apologised for his misconduct.

76.     The Tribunal must also have regard to whether such conduct will be repeated.  While Mr Al Taleb said that to make false statements was contrary to his religious belief, the Tribunal is concerned at what appeared to be some obfuscation in his evidence over the objective of his visit to London and as to whether he was undertaking work for his wealthy friend.  The Tribunal also notes his reference to the continuing need to bribe officials in Syria.  Overall, the Tribunal found his evidence unconvincing and considers that there is a risk of Mr Al Taleb repeating such misconduct should he perceive it to be for his benefit. 

77.     The Tribunal recognises that refusing a visa in the case of such misconduct may have a deterrent effect in respect of those contemplating similar misconduct.

78.     With regard to the second consideration, the expectations of the Australian community, in the Tribunal’s view the Australian community would generally seek to exclude a person from Australia where the person has knowingly been involved in an immigration scam.  There may be exceptions to this where the community will take into account other considerations.  However, in this case, the Tribunal is not so persuaded because of its concerns about Mr Al Taleb’s recent conduct, discussed above.

79.     The third primary consideration is the best interests of the child.  The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.

80.     This case is complicated by there being relevant children in Syria and Australia:  Mr Al Taleb’s four children in Syria and Mrs Al Taleb’s four children in Australia and their joint child in Australia, noting that Mrs Al Taleb is again pregnant.  Mr Al Taleb’s children in Syria are living with Mr Al Taleb’s family, with the primary care giver being his mother.  The absence of the children’s mother, from whom, of course, Mr Al Taleb is divorced, would seem to give greater significance to Mr Al Taleb’s relationship with his children, notwithstanding different cultural conventions relating to families and their caring for children of members of the family.  The Tribunal finds it surprising that Mr Al Taleb should spend six months in the UK relatively soon after returning to Syria, without, apparently, assisting in their financial and emotional support.

81.     With regard to the children in Australia, Mrs Al Taleb’s evidence is that her   four children by her two previous marriages have formed a strong bond with Mr Al Taleb over the period of approximately 15 months that they knew him in Australia.  Mr and Mrs Al Taleb’s youngest child, born on 5 July 2002, has had little opportunity to form a relationship with his father.

82.     On balance, and bearing in mind the other primary considerations, the Tribunal’s view is that Mr Al Taleb should remain with his children in Syria.   Mr Al Taleb mentioned that if he is not granted a visa to come to Australia, he will go to Lebanon.  Presumably, Mrs Al Taleb, who was born in Tripoli, could join him there with her children.

83.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”..  These other considerations include:  the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

84.     The Tribunal has found that Mr and Mrs Al Taleb have a genuine marital relationship.  The Tribunal notes the medical evidence that she is suffering from stress and/or depression (A1), and accepts that separation from her husband is causing her significant hardship.  However, Mrs Al Taleb must have been aware of the unresolved nature of Mr Al Taleb’s status in Australia at the time she committed to that relationship.  The fact that she had a particular need for a caring and supportive partner because of her children, does not absolve her from a degree of responsibility for her situation, including as to her youngest child and recent pregnancy.

85.     The Tribunal has already noted its concerns about Mr Al Taleb’s recent conduct in connection with his visit to London and his unconvincing evidence about this.  Mr Al Taleb also has family in Syria and responsibilities towards them.

86. Weighing up the primary and other considerations, in the Tribunal’s view, despite the hardship that will undoubtedly be caused to Mrs Al Taleb, the discretion in s 501(1) should not be exercised in Mr Al Taleb’s favour. The decision under review should therefore be affirmed.

I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  11 and 21 August 2003
Date of Decision  22 September 2003
Representative for the Applicant               Dr M Al Jabiri, Migration Agent
Representative for the Respondent          Mr A Grimm, Solicitor