Assad and Minister for Immigration and Multicultural Affairs
[2001] AATA 802
•21 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 802
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1849
GENERAL ADMINISTRATIVE DIVISION )
Re Amina Assad
Applicant
And Minister for Immigration & Multicultural Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date21 September 2001
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – sponsor - character test – past and present general conduct – false and misleading statements in connection with application for grant of visa - protection of the Australian community- expectations of the Australian community – level of risk to the community- seriousness and nature of the conduct – degree of hardship caused to visa applicant's spouse - credibility of visa applicant
Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501: paras 1.9(b), 2.2, 2.3, 2,4, 2.5, 2.8, 2.12, 2.17
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
Mr R P Handley
This is an application by Amina Assad ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 15 November 2000 to refuse the grant of a sub-class 309 – Spouse (Provisional) Visa to the Applicant's spouse Jamil Ahmad Klenk ("the Visa Applicant").
At the hearing, the Applicant was represented by Fahmi Hussain, Solicitor of Dalton Legal, and the Respondent was represented by Leonard Leerdam, Solicitor of Sparke Helmore. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by the Visa Applicant by telephone and by the Applicant in person.
BACKGROUNDThe Visa Applicant, Mr Klenk was born in Lebanon on 1 June 1972 and is aged 29. He arrived in Australia on 20 December 1995 holding a visitor visa valid for a period of 3 months. On 18 March 1996, Mr Klenk was issued with a further visa enabling him to stay in Australia until 23 September 1996.
On 20 August 1996, Mr Klenk applied for a protection visa. This application was refused by a delegate of the Respondent on 13 February 1997, a decision which was affirmed by the Refugee Review Tribunal ("RRT") on 22 January 1998. In February 1998 and again in September 1998, Mr Klenk requested ministerial intervention, which was denied on 21 June 1998 and 17 November 1998 respectively.
On 8 September 1998, Mr Klenk applied for a bridging visa E - sub-class 50. The letter from the Minister dated 17 November 1998, informing Mr Klenk through his solicitor, Sam Issa, that the Minister would not be exercising his power to intervene, asked Mr Klenk to contact the nearest regional departmental office to discuss his status in Australia.
Mr Klenk and Ms Assad were married at Lakemba Mosque, Sydney on 29 November 1999. On 24 May 2000, Mr Klenk contacted Mr Laurie Ferguson, MP about his immigration status. Mr Ferguson contacted the Department who interviewed him on 25 May 2000 and issued him with a bridging visa E to enable him to leave Australia lawfully. Mr Klenk departed Australia for Lebanon on 22 July 2000.
Mr Klenk lodged an application for migration to Australia with the Australian Embassy in Beirut on 26 August 2000. He was interviewed by the Principal Migration Officer, Allan Davis, and an interpreter at the Embassy on 8 November 2000. On 15 November 2000, Mr Davis, the delegate of the Respondent, decided to reject Mr Klenk's application for a sub-class 309 visa for entry to Australia.
On 11 December 2000, Ms Assad lodged an application for a review by the Administrative Appeals Tribunal.
RELEVANT LAW AND POLICYUnder s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…
10. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a) the applicant satisfied the Minister that the applicant passes the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
11. 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 either the Minister to give directions that would be inconsistent with this Act or the regulations".
12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
13. The issue for the Tribunal to determine in this case is, therefore, whether Mr Klenk is not of good character having regard to his past and present criminal conduct and his past and present general conduct, so as to be precluded from the grant of a sub-class 309 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, he should be granted a visa.
EVIDENCE
Mr Jamil Klenk (the Visa Applicant)
In giving evidence, Mr Klenk expressed concern about the possibility of the conference telephone line being intercepted. He was reluctant to name the Syrian forces, stating that he was concerned about reprisals.
Mr Klenk said that he has an aunt and uncle and sister living in Australia. He arrived in Australia on 23 December 1995 holding a tourist visa valid for 3 months, which was extended until 23 September 1996. In August 1996, he approached George Joukabar, a migration agent, in order to apply for a work visa. He said that he did not know anything about the law in Australia when he arrived here. He was surprised when this application was refused by the Department by reference to it being an application for a protection visa and not a work visa. He discussed this with George Joukabar who told him it was normal to get such a response. Mr Klenk said he believed he had applied for a work permit.
After receiving the rejection letter, Mr Klenk sought a review of this decision by the RRT. He was not represented at the hearing before the RRT, which he attended in person with a witness. He told the RRT that he believed he was applying for a work visa. After the hearing, when he received a letter from the RRT affirming the original decision, he sought ministerial intervention. He wrote a letter to the Minister with the assistance of Tofic Labar. He did not contact George Joukabar about this, having heard that he was out of the country at this time. When Mr Klenk received a letter from the Minister denying his request for ministerial intervention, Mr Klenk went to see a solicitor, Sam Issa, and asked him for advice. Mr Issa wrote to the Minister on his behalf again urging ministerial intervention, enclosing supporting documentation about his case, including a letter from Mr Klenk's brother, in Lebanon. When Mr Issa received a letter dated 17 November 1998, from the Minister, denying Mr Kenk's request for intervention, he was advised by Mr Issa not to worry, that everything was going well and to wait for a change in the Australian law. Mr Klenk admitted that this was wrong advice, and when, on his visit to Laurie Ferguson MP's office on 24 May 2000, he discovered he had been in Australia illegally since November 1998, he attended the Department's office on the next day in order to regularise his position and departed Australia voluntarily on 22 July 2000.
Mr Klenk said he lodged his application for a spouse visa on 26 August 2000 at the Australian Embassy in Beirut. On 8 November 2000, he was interviewed by the Principal Migration Officer in Beirut, Allan Davis, with an interpreter, and was asked many questions. Mr Klenk said he was not satisfied with the interview because he looked in their eyes and felt that they thought that he was not honest. He did not answer some of their questions about what he did in Australia because he was worried. When they asked him about his refugee application made in Australia, he said he felt scared.
Mr Klenk acknowledged that while he was in Australia, he was engaged on two previous occasions before meeting Ms Assad. He was engaged in April 1997 for approximately three weeks before breaking it off because he and his finance were not compatible. Then in May 1998, he was engaged once again, but when he and his finance did not get along, he broke it off. He met Ms Assad at her parent's house where he went with a friend. When he and Ms Assad got to know each other, Mr Klenk told her everything about his background. He said he mentioned his migration situation to her about July 1999, but they did not discuss his status in any detail until after they were married which was, on 29 November 1999. Having discussed his migration status, they went to see Laurie Ferguson MP who is a friend of Ms Assad's family.
While in Australia, Mr Klenk worked casually for some relatives who have a motor vehicle business, assisting with spare parts and spray painting. He obtained a tax file number, worked on average two or three days a week and paid tax as required. He worked for this business for a little more than a year until 1998 when his relatives did not have any more work for him. Apart from such money as he earned in Australia, he had financial help from his uncles and sister.
When he and Ms Assad decided to marry, Mr Klenk approached her father in the traditional Lebanese way to seek his permission to marry Ms Assad. Mr Klenk entered into an Islamic religious marriage agreement, they were married at Lakemba Mosque on 29 November 1999, but are yet to undergo a traditional Lebanese marriage ceremony. Therefore, they have also not yet consummated the marriage. In the marriage agreement, Mr Klenk agreed to pay gold and the costs of the wedding. He still has to offer his wife a house and furniture.
Mr Klenk said he has asked his wife to come to Lebanon and he would be happy if she did. However, he does not think she would be able to cope with living in the way that they do in Lebannon. It would be very hard for her to get a job there because she cannot speak the Lebanese language. .Even local people are unable to find employment in Lebanon. He denied that part of the reason for marrying Ms Assad was to obtain permanent residence in Australia.
Mr Klenk said that before coming to Australia, he used to work with his brother in his father's motor vehicle spare parts business. He started work in the business in 1987 and worked there until he left for Australia in 1995. Mr Klenk said that he has never been in the military, has never belonged to a political party, and does not have any criminal convictions. Mr Klenk said that he had studied car parts and spray painting. He shared the earnings from the business with his brother amounting to between 10,000 and 15,000 Lebanese Lire per day. He said the Syrian authorities used to come to their shop not less than five or six times a month and demand money. He was afraid of being tortured so he gave them money. He said the Syrian authorities also asked him to provide them with information on political issues relating to the East of Beirut. He did not do this because he said he did not know anything. The last contact he had with the Syrian authorities was about 7 months before he came to Australia.
Mr Klenk said that he had been threatened by the Syrian authorities and on one occasion had been taken to their base in the village where they had beaten him about the face, shoulders and back. He said this is what he meant when he said that he had been tortured and faced with being killed many times. He did not mention this to the RRT because he was scared. While Mr Klenk was in Australia, he received a letter from his brother relating things which were being done to his family by the Syrian authorities. His brother told him that in 1998/1999, he was approached by the Syrian authorities who thought Mr Klenk must have lots of money because he was in Australia.
Mr Klenk denied that his family's spare parts business had been robbed by Syrians in 1995. He admitted that what he had told the RRT about the Syrians who were persecuting him having connections with the Palestinians, was untrue. He said that the business had been closed after his father died. Mr Klenk said that he was scared at the hearing, so he exaggerated this issue.
Mr Klenk said that the situation in Lebanon is improving, and it is safer now than before, but the Syrian forces are still present. He said he had not received any threats since returning home. Presently, he is staying at his parent's home with his brother and sister and not working. He said that he had looked for work in Beirut without success. However, while his brother is in Australia he is driving his brother's school bus for him. Because it is school holidays, the bus is currently not operational. His family home is in Menier Village in North Lebanon. He only goes out to the super market and does not go out at night. His younger brother is working as an auto electrician and his mother takes in sewing work.
Mr Klenk said that he had been advised by Mr Ferguson that his wife should not go with him to Lebanon when he departed Australia on 22 July 2000. He said he is suffering because of the separation from his wife. He wants them to be together as a family. In Lebanon, he said there is no future, financially it is very hard, and he would not be able to support a family. He wants to have a normal life with his wife in Australia. He said he communicates with his wife by phone: she calls him two or three times a week. His uncles and aunts and brother and sister also phone him. He does not phone them because he does not have any money.
Ms Amina Assad (the Review Applicant)Ms Assad, who was born on 14 August 1979 and is aged 22, lives with her family in Paddington and works as a tele-sales operator for the Neverfail Company. Ms Assad said she met Mr Klenk through a family friend when they came to visit at her parent's home on 13 April 1999. Her father and his uncle are friends. When she and Mr Klenk got to know each other better, they became engaged in June 1999 and started going out together as a couple. Ms Assad said that she found Mr Klenk had a good sense of humour and felt that they clicked. They communicate mostly in Arabic. She said her Arabic is fairly good, having studied this when she was younger and having achieved what she described as an "intermediate" standard. She said that she went to Lebanon approximately four and a half years ago for two months with her family on holiday and did not like Lebanon very much. There were checkpoints every 500 metres, she did not like the food and was sick.
Ms Assad said Mr Klenk had told her of the two previous engagements that he had had in Australia how that he had broken off those engagements because he did not love those people.
Before they were married, Ms Assad believed that her husband was here on a working visa. They did not discuss his immigration status in any depth until after they were married when, in early 2000, they went to see a family friend, Laurie Ferguson MP. Mr Ferguson contacted the Department and found out that Mr Klenk was in Australia illegally. Ms Assad said she was shocked to learn of this problem. They decided that he needed to legalise his position as soon as possible. They therefore went to a travel agent and bought a ticket for Mr Klenk to return to Lebanon and went to the Department where Mr Klenk was issued with a two month bridging visa within which time he had to depart Australia. Ms Assad said that Mr Klenk did not tell her that he had been beaten by the Syrian authorities He had told her that he was harassed and intimidated and that the Syrian authorities had demanded money, and that this was a reason for shutting down the business. She said the question of her sponsoring his migration did not arise before their marriage because she was not aware of his illegal status. She assumed that because he was on a working visa and was not a permanent resident, she would sponsor his migration here.
Ms Assad said that she and Mr Klenk had an engagement party on 21 November 1999 and a marriage ceremony at Lakemba Mosque on 29 November 1999 when they signed a marriage certificate. However, she said their marriage had not yet been consummated and they have not yet lived together because they need to go through a traditional Lebanese wedding ceremony.
Ms Assad said that she did not plan to go to Lebanon. She was advised against returning to Lebanon with her husband by Mr Ferguson. Apart from her own experience during her holiday in Lebanon, her sister had lived in Lebanon for ten months after she had married a Lebanese man who was initially refused residence in Australia. There had been bombings in her sister's village in North Lebanon while she was there. Ms Assad said she phones Mr Klenk every few days. She assists him to a small degree financially and he is also helped financially by his uncles and by his brothers in Germany..
Ms Assad said her parents have lived in Australia for over 30 years; she was born and raised here and English is her native language. Her family have strong ties and they do things together. She said she could not live in Lebanon where there is no freedom and it is like a police state. However, she said that she is not coping very well with Mr Klenk being in Lebanon. She feels embarrassed when she goes out and people ask her about her husband. She also finds that she loses concentration and suffers severe mood swings, is tired and has become a less sociable person. She noted that she was involved in a minor motor vehicle accident four days after Mr Klenk's departure from Australia which she attributed to a lack of concentration and depression.
Ms Assad doubted that she could obtain employment in Lebanon given that there are insufficient jobs for the local people. She is also is considering pursuing further education. She completed her HSC and is now thinking of undertaking a photography course. Nevertheless, Ms Assad said that if Mr Klenk's visa application was unsuccessful, as a last resort she would go to Lebanon to live with him and would keep on trying to get permission for him to live in Australia. Her cousin has a panel beating shop in Sydney and has said that Mr Klenk, who is a spray painter, will have a position open for him there.
In a written statement dated 9 July 2001, Ms Assad noted a number of false Departmental statements in the documentation. In particular, she said Mr Klenk was not located non-voluntarily via a field visit on 25 May 2000. What happened was that she and Mr Klenk approached Laurie Ferguson MP, a friend of her uncle's, for advice concerning Mr Klenk's immigration status in Australia. Mr Ferguson phoned the Department and discovered that Mr Klenk was in Australia illegally and had to leave as soon as possible. He therefore advised Mr Klenk to go to the Department's Parramatta office to apply for a two month bridging visa so that Mr Klenk was then able to depart Australia lawfully. Meanwhile, Mr Ferguson advised that Mr Klenk should undergo medical and police checks before departing for Australia. Ms Assad also noted that Departmental documents recorded that Mr Klenk has a son. She said this was entirely false.
Ms Assad said Mr Klenk has strong family ties in Australia including three uncles, 2 aunts and his sister, all of whom he used to see regularly while he was in Australia.
SUBMISSIONSThe Respondent contends that Mr Klenk, by reason of his past and present general conduct, is a person who is not of good character and who is, therefore, a person who does not pass the character test by virtue of s 501(6)(c) of the Act. The Respondent pointed to examples of Mr Klenk seeking to mislead both the RRT and the Tribunal, and submitted that it was clear that Mr Klenk had sought to fabricate evidence where he thought it would be advantageous to do so.
By contrast, Mr Hussain, for the Applicant, contended that when Mr Klenk came to Australia he was naive, he was unrepresented at the hearing before the RRT and he thought at all times that he was applying for a work permit and not a protection visa. Mr Hussain said that Mr Klenk's evidence indicated his concern for his own safety, which was reasonable given the incident of physical intimidation about which he had given evidence. Mr Hussain said whilst Mr Klenk was perhaps naïve and even stupid in making some of the claims, he had not intended to give false evidence or mislead.
Mr Hussain said Mr Klenk had not realised that he was in Australia illegally between November 1998 and May 2000 and, when he did realise this, he took immediate steps to comply with migration requirements and departed for Lebanon as he was required to do. Mr Hussain pointed to the strong ties which Mr Klenk has in Australia both with his wife and his own family members. Mr Hussain said that the separation of Mr Klenk from Ms Assad was causing hardship to both of them. With regard to Ms Assad, she was born in Australia, her life is here and she does not want to live in Lebanon where she feels that her freedom will be restricted and where she has no employment. Moreover, her family is entirely in Australia.
Mr Hussain submitted that Mr Klenk was not a person who had shown disregard for Australian laws or who would cause harm to the Australian community. Mr Klenk accepts that he must take responsibility for having been mislead by the migration agent who advised him about the making of an application for what was, in fact, a protection visa. However, Mr Klenk's compliance with all other migration requirements should be taken into account.
Mr Leerdam, said the Respondent's view is that Mr Klenk has shown a blatant disregard for Australia's immigration laws and had sought to mislead Australian authorities, thereby committing serious offending behaviour. Mr Leerdam argued that the Australian community could legitimately expect that Mr Klenk should not be allowed to enter Australia because of his conduct in abusing Australia's immigration laws. Furthermore, a strong deterrent message should be sent to any non-citizens contemplating engaging in such immigration malpractice. Such considerations should override the hardship which Mr Klenk and Ms Assad are likely to suffer as a result of the denial of a visa, although Mr Leerdam noted that, despite her reluctance to do so, Ms Assad had stated that she would go to Lebanon to be with Mr Klenk as a last resort.
FINDINGSThere is no dispute that the relationship between Mr Klenk and Ms Assad is a genuine one. They were married in a marriage ceremony at Lakemba Mosque on 29 November 1999, although they have not yet lived together because they have not had a traditional Lebanese wedding ceremony. The Tribunal accepts their evidence that their continuing separation is causing hardship to both of them and is causing emotional distress. The Tribunal notes Ms Assad's evidence that, as a last resort, she could go to Lebanon to live with her husband. While she might have difficulty in obtaining work there, on her own evidence she speaks reasonable Arabic and should, therefore, not encounter major communication difficulties. However, Ms Assad was born and has lived all her life in Australia where her family live in Sydney and with whom she has strong ties. She stated that she does not wish to live in Lebanon and is focused on a future in Australia.
Mr Klenk arrived in Australia on 23 December 1994 on a visitor visa. The Tribunal accepts his evidence that he was not familiar with Australian law when he arrived here and, when he approached a migration agent for assistance, he intended applying for a work permit. However, the Tribunal finds that when his application for what was in fact a protection visa was refused, or at least at the time that this decision was reviewed at the RRT hearing on 7 January 1998, he must have become aware of what the true nature of his visa application was, namely an application for a protection visa and not a work permit.
Similarly, the Tribunal finds it hard to believe that Mr Klenk would not have known that he was in Australia illegally after the second request for ministerial intervention was denied by letter to Mr Klenk's solicitor, Sam Issa, on 17 November 1998. Mr Klenk claims that Mr Issa advised him not to worry about it and to wait for the law to be changed, but Mr Klenk did nothing to regularise his position in Australia for a further 18 months until he went with his wife to consult Laurie Ferguson MP on 24 May 2000.
44. Generally, the Tribunal found it very difficult to obtain a complete account from Mr Klenk as to the details of his claimed intimidation and harassment in Lebanon. The Tribunal notes there were inconsistencies between the story Mr Klenk told the Tribunal and that which he told the RRT. For example, his evidence to the Tribunal about being tortured, which he said involved his being beaten around the face, shoulders and back, was evidence which he had not previously given. He also denied to the Tribunal the story of his shop having been robbed. He did, however, acknowledge that he had exaggerated his evidence at the RRT hearing and that his his mention of a link between the Syrian forces and the Palestinians was false. The Tribunal recognises that Mr Klenk may have been scared, as he claimed to be, but the changing of his evidence in the accounts he gave at different times obviously undermines his credibility. The Tribunal notes that the RRT did "not accept the Applicant as a credible witness". The RRT's "negative assessment of his credibility was reinforced by the fact that he continually altered his evidence during the hearing" (T10). The Tribunal also noted Mr Klenk's evidence about Ms Assad not speaking Arabic which she contradicted in telling the Tribunal that she was able to speak Arabic at intermediate standard. Indeed, she said they communicate mainly in Arabic.The Tribunal also notes the lack of any corroborating evidence with regard to Mr Klenk's story as to what happened in Lebanon, nor, apart from Ms Assad, have there been any witnesses as to Mr Klenk's good character. The Tribunal recognises that Mr Klenk's ignorance of the workings of the Australian system of law and, in particular, the migration system, may have proved a disadvantage to him as may his limited English skills. However, on the basis of the evidence before the Tribunal, the Tribunal is unable to make a finding of good character in the light of what appear to have been various attempts to exaggerate and mislead in pursuance of his aim of obtaining an Australian visa.
APPLICATION OF THE LAW
The application of the "character test" in s 501(6)(c) is by reference firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277, 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's entries character in the sense of his or her moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within section 501 (2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test.
If the Tribunal decides that, in its view, the Visa Applicant, Mr Klenk does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) 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.
Firstly, the Tribunal is not satisfied that Mr Klenk is of good character having regard to his past and present general conduct. 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 counterveiling factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(b) which directs the decision-maker to consider
whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement, or false or misleading declaration;
As stated above, the Tribunal doubts the credibility of some of Mr Klenk's evidence. With regard to certain significant matters, his evidence contained inconsistencies. Mr Klenk acknowledged that he exaggerated parts of his evidence before the RRT and, in the Tribunal's view, he also exaggerated some of his evidence before the Tribunal. He sought to paint a picture of harassment and intimidation which was not otherwise supported on the evidence. Thereby, Mr Klenk, has made false or misleading statements in connection with his application for the grant of a visa. Apart from Ms Assad's evidence, there was no evidence to corroborate Mr Klenk's evidence of either the harassment or intimidation which he claims to have suffered in Lebanon or the advice by which he claims to have been mislead in dealing with his migration application whilst in Australia. The Tribunal is not therefore satisfied that Mr Klenk passes the character test on the basis of the evidence before it.
Secondly, with respect to the exercise of the discretion in s 501(1), the Tribunal had regard to Part 2 of Direction 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
"Decision-makers must have due regard to the importance placed by the government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations."
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
The protection of the Australian community, and members of the community;
the expectations of the Australian community, and
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.
The third of these primary considerations is not relevant in the present case, there being no child or children involved.
With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) where the visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
Examples of offences which are considered by the Government to be serious include serious crimes against the Migration Act 1958 which in turn include "making a false or misleading statement in connection with entry or stay in Australia." Paragraph 2.8 requires decision-makers, when exercising discretion, to take into account any relevant mitigating factors provided by the non-citizen.
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".
Paragraph 2.12 states that the expectations of the Australian Community are that non-citizens should obey Australian laws while in Australia.
There are also other considerations to which a decision-maker is directed by paragraph 2.17, which states that, where relevant, "it is appropriate that these matters be taken into account, but that generally they be given less individual weight than that given to the primary considerations". These other considerations include the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family, business and other ties to the Australian community, genuine marriage to an Australian citizen, the degree of hardship caused to immediate family members in Australia, the family composition of the non-citizen's family both in Australia and overseas, and any evidence of rehabilitation and any recent good conduct.
With regard to primary considerations, the Tribunal's view is that the Visa Applicant, Mr Klenk, made false or misleading statements in connection with entry or stay in Australia, a matter which is regarded as serious by the Australian community. The Tribunal notes what the Visa Applicant has said by way of mitigation in terms of his having relied on advice from a migration agent and a solicitor. Secondly, with regard to the likelihood that the conduct may be repeated, the Tribunal notes that even at the most recent hearings, new inconsistencies emerged from the Visa Applicant's evidence. The Tribunal is not, therefore, persuaded as to rehabilitation at this point in time. Thirdly, with regard to general deterrence, the Tribunal considers that deterring others from making false of misleading statements in migration applications is a relevant factor.
With regard to the expectations of the Australian community, there is a clear expectation that the Australian community expects non-citizens to comply with Australian law and, in view of the Tribunal, the Australian community would expect that a person who makes false and misleading statements in connection with a Visa Application should have their application considered less favourably.
Of the other considerations to which decision-makers are referred, the Tribunal recognises the genuineness of Mr Klenk's and Ms Assad's relationship and that refusal of a visa to Mr Klenk would cause disruption to his family in Australia and hardship to Ms Assad. The Tribunal also recognises that although Mr Klenk has some family members in Australia, his parental home is still in Lebanon. Finally, the Tribunal notes a lack of evidence as to rehabilitation or recent good conduct.
On balance, and weighing up these considerations, in the Tribunal's view the discretion to grant a visa to Mr Klenk should not be exercised. There are too many unanswered questions about his conduct in Lebanon which was the basis for his application for a protection visa. There are also too many inconsistencies in his evidence which go to a lack of credibility and support the Respondent's contention that he made false and misleading statements. It may be that, at a later time, these questions can be answered or explanations given, or that other evidence will be adduced which will give another view of this matter. However, at the present time, in the Tribunal's view, these unresolved issues outweigh considerations such as the hardship which will be caused to Ms Assad.
The Tribunal therefore affirms the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: .....................................................................................
AssociateDate/s of Hearing 30 & 31 August 2001
Date of Decision 21 September 2001
Solicitor for the Applicant Mr F Hussain, Dalton Legal
Solicitor for the Respondent Mr L Leerdam, Sparke Helmore
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