Carini and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 90
•31 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 90
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/571
GENERAL ADMINISTRATIVE DIVISION ) Re VINCENZA CARINI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date 31 January 2005
Place Sydney
Decision The decision under review is affirmed.
[SGN] Deputy President J Block
CATCHWORDS
MIGRATION – spouse visa – application rejected on character grounds –the Visa Applicant lodged and persisted in a false application for a protection visa and also joined a High Court class action although not a refugee – Visa Applicant attempting to avoid military service in Lebanon – Visa Applicant failed the character test – discretion under part 2 of Direction 21 – decision under review affirmed.
Migration Act 1958 – section 234, 417, 501
Selvadurai and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
Re Ynson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 844
Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
Re Cheng Chea and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1315
REASONS FOR DECISION
31 January 2005 Deputy President J Block
Part A: Introduction and General
1. The decision under review is the refusal dated 16 April 2004 (Tp5) by the Minister for Immigration and Multicultural and Indigenous Affairs (the “Respondent”) of a spouse visa applied for by Bachir Assaf (the “Visa Applicant”); that application was sponsored by his wife, Vincenza Carini (the “Applicant”).
2. The Applicant was represented by Mr E White of counsel, instructed by Mr S Issa of Firmstone Lawyers. The Respondent was represented by Mr M Allatt of the Australian Government Solicitor.
3.
The Tribunal had before it the T-Document and Supplementary T-Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975; the Supplementary T-Documents are not numbered sequentially after the T-
Documents and accordingly page references preceded by “T” refer to the T-Documents while page references preceded by “S” refer to the Supplementary T-Documents.
4. The Tribunal also admitted into evidence exhibits as follows:
(a) Exhibit A1: Affidavit of Vincenza Carini (the Applicant) dated 29 June 2004
(b) Exhibit A2: Notice of Determination of Development Application from Leichhardt Council dated 27 October 2003
(c) Exhibit A3: Affidavit of Caterina Carini dated 11 August 2004
(d) Exhibit A4: Affidavit of Bachir Assaf (the Visa Applicant) dated 21 July 2004
5. The Respondent’s Statement of Facts and Contentions dated 21 September 2004 contains the usual helpful chronology of relevant events; in that statement, the Applicant is referred to as the Review Applicant while the Visa Applicant is referred to as the Applicant. I include in these reasons and in respect of that Statement of Facts and Contentions clauses 4 and 13-19 as follows:
“[4] Date Event
20/12/1974
Review Applicant was born in Australia [T, f39]
10/01/1977
Applicant was born in Lebanon [T , f39]]
12/09/1998
Visa Applicant arrives in Australia on tourist visa valid for 3 months after entry [T1, f6]
Circa. 2/1998 and 1999
Applicant applies for extension for tourist visa which are granted
07/09/1999
Applicant lodges a Protection Visa Application [S, 34]
02/01/2000
Visa applicant and review applicant meet (T , f61)
18/01/2000
Department delegate writes to Applicant to advise Protection Visa refused [T6, f74]
Circa August 2001
Applicant lodges application for review of Delegates refusal of PV with RRT [S59]
20/09/2001
RRT hands down decision affirming refusal of PV [S, f76]
02/01/2002
Applicant and Review Applicant commence relationship after meeting earlier in November 1999 [P61]
22/07/2002
Applicant and Review Applicant marry [T1, f12)]
10/09/2003
Applicant and Review Applicant lodge Spouse Visa Application [T4, f230]
12/09/2003
Applicant departs Australia [T2, f6]
21/01/2004
Letter from Department to applicant pursuant to s501 [T11, f132]
22/01/2004
Applicant interviewed at Australian Embassy , Beirut [T9, f120]
11/03/2004
Applicant’s response to s.501 letter received from his solicitors [T13, f135]
16/04/2004
Decision to refuse applicant visa as not passing character test pursuant to s.501 [T2, f5-17] notified by letter dated 16 April 2004
17/05/2004
Application to AAT for review of decision refusing spouse visa [T1, f1]
. . .
[13] The respondent asserts that the applicant’s history shows that he has given false and misleading statements in connection with his PV application lodged 12 months after arrival in Australia just prior to the expiration of his tourist visa extension. In particular, the respondent asserts the following history highlights the false and misleading nature of the applicant’s PV application:
The applicant claimed in his protection visa application that if he returned to Lebanon he would have to perform national military service and he objected to doing so because he would be serving a government which supports Syrian occupation and discriminates against Christians.
He claimed he was a long time student activist and had led a group of 20 students distributing anti-government pamphlets calling for the downfall of the government, withdrawal of Syrian troops and resignation of the education minister.
In December 1997 he claimed he was questioned by Hobeish police and asked to give names and members of his group during a mass civil strike protesting the media block of interviewing General Aoun. He was warned by the police that if he continued with his protests he would not have an education in Lebanon.
He claimed that two months after arrival in Australia he was told by his father that his university enrolment was rejected because of his past student activity.
He knew that after this he would be required to perform military service and claimed he would be mistreated during that service.
[14] His initial application for grant of a protection visa was refused and the delegate noted he had lodged his application one year after arrival in Australia despite having been told of his alleged non-enrolment at university only two months after his arrival. The delegate determining that matter concluded that his claims regarding the Lebanese governments treatment of Christians and the concerns of the student activists in Lebanon did not correspond with the country information.
[15] On 7 February 2000 the visa applicant appealed to the RRT and made the following additional claims:
He claimed he was politically active at secondary school as part of the Christian student movement and that he downloaded information from Aoun’s website and distributed the literature inside and outside the school.
He claimed he was involved with Triar Al Watan - the free patriotic movement at university and distributed pamphlets outside the university.
He claimed that he encouraged other students to participate in a demonstration in December 1997 to protest against the medial ban of MTV’s decisions not to screen the interview with Aoun at St Joseph’s university. He claimed that he did not attend the protest and therefore was not arrested.
He encouraged students to attend a demonstration at the Ministry of Justice and two days after the demonstration he claimed police went to his house and he was asked to report to the Hobeish. He then claimed he went to the Hobeish in Hamra and was detained for four hours.
[16] In making its decision the RRT commented in terms which could only be interpreted as unfavourable to the applicant’s credibility. The RRT made a finding of implausibility in respect of a claim that the visa applicant’s father had spoken to the dean of the university in relation to a “text book” issue and that the visa applicant did not pursue the matter with the university himself.
[17] During an interview conduced by departmental officers in Beirut with the visa applicant in respect of the present application, the applicant made a number of admissions concerning his purpose of visiting Australia in the first instance and that he had fabricated aspects of his protection visa application. Notes of the interview appear at T10, folio 121-131.
[18] In summary, the visa applicant stated his primary reason for travelling to Australia was to visit his brother(s)). He stated that after his arrival in Australia he saw the difference between Lebanon and Australia and that he preferred Australia because of the way people lived and were treated. He restated that his decision not to return to Lebanon followed a conversation with is father who it is said advised him that his university enrolment in Lebanon had been declined and that in those circumstances if he returned to Lebanon he would face compulsory military service.
[19] The interviewer put to the visa applicant a number of contradictions in his evidence as between his original protection visa claims and the claims subsequently made before the RRT. The visa applicant’s responses to questions regarding those contradictions are summarised in the delegate’s decision at T2, folio 9. During the course of the interview with the delegate, the applicant admitted that he had fabricated his entire claims to be refugee and that he was not a student activist (see f130).”
6. As a matter of balance I include in respect of the Applicant’s Statement of Facts and Contentions clauses 10-19 as follows:
“[10] Whilst the visa applicant concedes that he did exaggerate some aspects of his claims in his application for a protection visa, he denies that he made the admission that he had fabricated his entire claim to be a refugee and that he was not a student activist.
[11] The visa applicant denies that he had deliberately fabricated the extent of danger in which he claimed he would be placed if he returned to Lebanon, in order to convince the Australian authorities he was a genuine refugee.
[12] The visa applicant contends that the interpreter relied upon during the interview, was not a qualified interpreter and therefore not able to accurately interpret what was being said by both the interviewer of the visa applicant.
[13] The Delegate found in her decision that she was not satisfied that other care arrangements are not available to the review applicant’s mother from other relatives or community care.
[14] The review applicant and visa applicant contends that there is no such basis for such a finding.
[15] The review applicant’s sister resides in Canberra, and is the carer to her husband who suffers from cerebral palsy.
[16] If the review applicant’s mother was to rely on community care, this would pose a significant cost to the Australian community.
[17] Given the emotional attachment that exists between the review applicant and her elderly mother, any lengthy separation will adversely impact on the mother’s health.
[18] The review applicant was born in Australia. Her entire family also resides in Australia.
[19] Given the prevailing economic conditions in Lebanon, both the review applicant and visa applicant will experience great difficulty in obtaining full time employment. The difficulty for the review applicant is further exacerbated by the fact that she is not familiar with the Lebanese culture nor competent in the Arabic language.”
7. After his application for a protection visa was refused, the Visa Applicant sought the review of that refusal by the Refugee Review Tribunal (the “RRT”); its decision is set out at Sp76-p93; The RRT accepted (in part) the Visa Applicant’s account of certain events. I set out in respect of its findings under the heading “Findings and Reasons”:
“The Tribunal accepts the applicant’s account of events that preceded his departure from Lebanon. The one aspect of his account which the Tribunal does not accept is that concerning his exclusion from university on the grounds of political activity. The Tribunal finds a number of aspects of the applicant’s account to be unsatisfactory. First, the Tribunal finds the applicant’s claim that his father spoke to the dean of the faculty in order to sort out the applicant’s text books to be implausible; second, the Tribunal has difficulty accepting that the applicant would merely have accepted what his father told him the dean had said, without taking steps himself (aside from asking his father to obtain a letter) to obtain further information, written reasons, or a proper explanation for his exclusion. Even if, for the purposes of this decision, the applicant’s account is accepted, the Tribunal cannot be satisfied that the reason for his exclusion lies in his wider political activities, rather than his involvement in protests and strikes on campus, which may well have involved the breach of university rules. The Tribunal notes that the dean spoke to the applicant on several occasions about his involvement in strikes and protests on campus; and that he referred to the applicant’s bad behaviour in his conversation with the applicant’s father. The Tribunal notes that there is no mention in any of the other material before the Tribunal concerning student activists having been expelled or excluded from university. Some of those whose circumstances are discussed in the material provided by the applicant (for example, transcript of Dateline programme, 2 February 2000, would appear to have much higher profiles, in the broad political sphere, than the applicant. The Tribunal has difficulty accepting that the applicant would have been singled out for this punishment, given the nature of his broader political activities, unless it was related to some specific aspect of his behaviour on campus. In circumstances where the applicant is not able to provide documentary proof of the reasons for his exclusion from university, the Tribunal is not able to be satisfied that this, if it occurred, related merely to the peaceful expression of political views deemed unacceptable to the government. In any event, denial of the right to pursue a tertiary education, while unfair and discriminatory if done for political reasons, is not, in the view of the Tribunal on the evidence available in this case, a harm so serious to constitute persecution. The Tribunal cannot be satisfied, on the available evidence, that the exclusion is permanent; that the applicant would not be able to obtain entry to other universities; or most significantly, that the applicant would not be able to pursue an alternative career or course of study without suffering serious penalty or hardship.
In other respects, the Tribunal accepts the applicant’s account – it accepts that he was involved in anti-Syrian political activities both on and off campus; that he was a member of a student branch of the FPM; that he was detained for four hours for questioning following a demonstration in December 1997; and that he was again detained for two hours in April 1998.
There are several issues to be determined by the Tribunal in this application. Firstly, the Tribunal must decide whether the applicant would face punishment amounting to persecution for failing to either renew the deferral of his national service, or to enlist on or before the expiry of his last deferral; secondly, the Tribunal must decide whether there is a real chance that, if the applicant were to perform his national service, he would be subjected to mistreatment amounting to persecution for the Convention reason of his religion or his political opinion; and thirdly, whether the applicant would face persecution as a consequence of any political activity that he would engage in on his return to Lebanon.
As to the first issue, the independent evidence before the Tribunal indicates that the penalty imposed for failure to comply with national service obligations would be a period of imprisonment, probably twelve months, imposed by a military court under the Military Penal Code: see DFAT cable BI500118; CX11486; UK Home Office report.
The applicant has given evidence that he has no objection to performing compulsory military service; and that he acknowledges that everybody – that is, all eligible Lebanese males – has to do it. Nor is there any suggestion that the applicant would be given a disproportionately harsh penalty for failing to comply with his national service obligations. In these circumstances, the Tribunal is not satisfied that there is a real chance that the applicant faces a discriminatory penalty amounting to persecution, based on his religion or political views, in relation to his failure to attend for national service. The Tribunal finds that the applicant would be punished according to a non-discriminatory law of general application, which cannot be considered to be persecution within the terms of the Convention.
As to the applicant’s claim that he would suffer persecution in the army as a consequence of his known political views, the Tribunal notes that there is no independent evidence to support this assertion. As was conceded by the applicant at the hearing, all armies can be brutal; it would not be surprising if some conscripts did suffer mistreatment while performing their national service. However, in circumstances where there exist many reports which are critical of the Lebanese government’s human rights record, the Tribunal would expect that if particular groups of conscripts were routinely being subjected to harsh mistreatment for Convention reasons, there would exist some independent record of this. Not only is there no such independent evidence, but the applicant himself was not able to point to any specific cogent evidence supporting his assertion. The examples he gave of cases where he knew Christian conscripts to have been abused do not, in the view of the Tribunal support his contention that conscripts are routinely persecuted for their religion or their politics. The Tribunal is not persuaded that, in the examples he gave, the people concerned were either subjected to sufficiently harsh treatment as to amount to persecution; or that they were mistreated for any Convention reason, rather than for reasons of personal antipathy, or generalised brutality. Furthermore, what independent evidence there is suggests that the Lebanese army now operates successfully as an integrated and non-sectarian body; in these circumstances, it would appear highly unlikely that persecution of conscripts for reason of their religion (or political opinion) occurs on a widespread or institutionalised basis. The Tribunal concludes that the applicant’s fear of being persecuted for reason of his religion or his political opinion if he were to perform compulsory military service is not well founded. In so finding the Tribunal has considered the applicant’s claim that he was excluded from university as part of a conspiracy to force him into the army so that he could be punished for his political activity; however, it is of the view that such a scenario is implausible and far-fetched, and considers the possibility of the applicant facing persecution in these circumstances is remote.
Turning now to the question of whether the applicant would face persecution if he returned to Lebanon on the basis of his political views and/or activity, the Tribunal notes, first of all, that the independent evidence indicates that the Lebanese security authorities are presently engaged in a crackdown on those largely Christian political activists who have, for some time, been engaged in protest activity expressing the view that Syria should relinquish its military, political and economic hold over Lebanon. The Tribunal accepts that the applicant was engaged in such protest activity prior to his departure from Lebanon in 1998.
Given his history, the Tribunal is not satisfied that the applicant would have a significant profile on the basis of his past activities alone, especially given that he has been outside Lebanon, and therefore inactive, for some three years. This finding is based on the fact that, accepting the applicant’s account, he has been questioned twice for several hours over the course of several years in which he was engaged in activities such as distributing leaflets; he was released despite, he claims, having been essentially unhelpful to the authorities; and although he was verbally abused, he was not physically ill treated. Moreover, the applicant says that after the second detention in April 1998, he scaled down his activity and remained politically active only on campus. During this period the applicant had no further difficulties with the authorities. In these circumstances, the Tribunal finds that the applicant could safely return to Lebanon without experiencing persecutory treatment based on the activities in which he has been involved in the past.”
8. The decision maker in her decision dated 16 April 2004 summarised an interview which took place in Beirut on 15 January 2004 (Tp8-Tp9):
“Mr Assaf was interviewed in Beirut on 15 January 2004. Mr Assaf was asked to explain his original visit to Australia, the circumstances of his remaining in Australia beyond the initial visa period and the reason for the submission of his protection visa claims. The following summarises the discussion at interview:
Mr Assaf stated that his primary reason for travelling to Australia was to visit his brother.
He stated that after his arrival he saw the difference between Lebanon and Australia. He said that he preferred Australia because of the way the people lived and were treated. He stated that he hated Lebanon after he saw Australia.
He stated that after his arrival, he spoke to his father who informed him that his university had declined his re-enrolment. He stated that he then enrolled at the University of Sydney and paid his fees. He was refused his admission and his fees were refunded.
He stated that he decided not to return to Lebanon because he would be made to perform compulsory military service. He stated he would be mistreated in the army because of his history as a student activist and because he is a Christian.
Protection Visa Claims and Context
Mr Assaf was asked to recount his Protection Visa claims. After identifying contradictory information was identified at interview in respect of his alleged detention and attendance at a student demonstration in Beirut, it was put to him that he had fabricated his claims for a Protection Visa. The points of contention were as follows:
In respect of his alleged detention, at the RRT hearing Mr Assaf stated that he was detained for 4 hours at the police station in Hamra. In contrast at interview, he stated that he had been questioned for 15-20 minutes at the police station in Achrafieh and that he was at the police station for a total of 2 hours which included waiting time.
At the RRT hearing he stated that the police had gone to his family home spoke with his mother who told him the police had asked him to go to the Hobeish in Hamra. In contrast, at interview, he stated that the police approached his friends who told them he had to attend the police station in Achrafieh. When this contradiction was brought to his attention, he admitted the entire claim was false and that he had not been detained.
In respect of the demonstration against the MTV media ban, he told the RRT that he did not attend the demonstration. In contrast, at interview, he stated that he did attend the demonstration. He provided details about what happened at the demonstration. When the contradiction was brought to his attention, he stated that he had not specifically attended but that he had been passing by on his way from his aunt’s house and joined the demonstration.
It was put to Mr Assaf that there were many inconsistencies between his account at interview and the claims put forward at primary stage and at the RRT. It was also put to him that his claims were implausible. Mr Assaf then admitted that he had fabricated his entire claims to be a refugee and that he was not a student activist.
When asked why he remained in Australia, he stated that his brother had wanted him to stay. He stated that when he first extended his visitor visa, it was not of his choice. He stated that his brother’s (sic) supported him in Australia.”
(Comprehensive notes taken during the interview are contained at Tp121-131).
9. There is an important relevant factor which can conveniently be included in this Part A. The Visa Applicant gave evidence for the best part of two days by conference telephone link to Lebanon and with the assistance of Arabic interpreters. Interpreters in that language were provided at his request, and he elected for the most part to answer questions in Arabic. However there were many occasions when he answered questions in English and towards the end of his evidence he demonstrated that he is fluent in English, as he himself claimed in his spouse visa application. Mr Allatt asked him to read a passage, and which he did with complete fluency. In his spouse visa application dated 15 September 2003 (T5p82) the questions and answers in respect of questions numbered 31, 32 and 33 read as follows:
“31 Your main language: Arabic – English – French
32 How well do you communicate in English: Better than functional
33 Other languages you read, understand, speak and write fluently: English – French – Arabic”
10. The Visa Applicant demonstrated in fact that his English is better than that of either of the two interpreters and particularly the interpreter who assisted on the second hearing day.
11. The particular relevance of clause 9 and 10 of these reasons arises from the fact that the Visa Applicant attacked the validity and integrity of the interview. That interview was referred to in the delegate’s statement of reasons for visa refusal which appears at Tp8-Tp10. At the commencement of the hearing Mr Issa from the bar table said that the person who interpreted during the interview was not an accredited interpreter. During the interview in Beirut the Visa Applicant used both languages.
Part B: The Evidence of the Applicant
12. I consider that I need not deal with the evidence of the Applicant in detail. With some minor reservations, I accept that she is a good and honest person who is genuinely devoted to the Visa Applicant. She first met him in cyberspace on an internet chat site in December 2001 (Tp61). She then met him in person shortly thereafter on 2 January 2002 (Tp61) and became engaged to him six weeks later on Valentine’s Day 2002 (Tp61). They were married on 27 July 2002 (Tp62). The Visa Applicant (who is nearly 30) is a child care worker; she has worked in this field for some ten years.
13. The Applicant travelled to Lebanon on 12 December 2003 and spent some two months with the Visa Applicant and his family. She does not speak Arabic and could not converse with the Visa Applicant’s family; the Visa Applicant translated for her throughout her stay. She described the Visa Applicant as being “pretty good” in English. She did not explore employment opportunities in Lebanon. She said that this was so because she does not speak Arabic and in any event there are cogent reasons (which I accept) why she cannot contemplate being reunited with him in Lebanon. Those other reasons relate in particular to her mother’s health. The Applicant is very close to her mother and lives with her. The Applicant has a sister who is married and lives in Canberra and who has problems of her own in that she is married to a man who is, and always has been, disabled (See Exhibit A1).
14. The Applicant’s evidence was that the Visa Applicant’s parents and the Visa Applicant live in a one bedroom apartment and that while she was there all four slept in the same bedroom. (The Visa Applicant’s evidence was that he and the Visa Applicant slept in the living room on a sofa).
15. At an early stage of her evidence, the hearing was adjourned for 15 minutes when the Applicant became upset about her separation from the Visa Applicant. Her upset was such that it was not possible for the hearing to continue and an adjournment was granted to allow her to collect herself.
16. The Applicant’s devotion to the Visa Applicant is demonstrated also by the fact that she is and has been supporting him financially ever since he returned to Lebanon on 12 September 2003. He has not worked since his return to Lebanon and remains unemployed. The Visa Applicant in his evidence said that the support provided is approximately $400 per month. It must be noted that she earns between $480 and $490 per week before tax. The Applicant knew from the outset that the Visa Applicant was not a resident of Australia. She said that it did not concern her at the time. Moreover, the Visa Applicant wanted to marry the Applicant within six weeks of meeting her.
17. The Applicant knew before she married the Visa Applicant that he had applied for a protection visa which had been refused. (In fact his application for a protection visa had been refused on 18 January 2000 (S2p33), approximately one year before he met her. Furthermore, the Visa Applicant’s review of this refusal was affirmed by the RRT on 29 August 2001 (S4p76), approximately 3 months before the Visa Applicant met the Applicant.) Her evidence was that he told her that he was afraid to go back to Lebanon because Syrians were running the country, and also that he had been involved in student matters.
18. In a statutory declaration dated 24 February 2004 (Tp145) the Applicant stated:
“. . . my husband had told me that he had made a mistake when he was younger, and before he met me, and he may have to go to Lebanon to apply for another visa. He was sent to Lebanon to apply for the visa, me and my mother were very emotional, distraught and depressed at the news, this meant we were left without his support. Having made the mistake that he now regrets it, as he was young, immature and single, and would love nothing more than to be reunited with his wife, and mother in law who is unwell, and also to help care for her . . .
I Vincenza Assaf (Carini) Bachir’s wife would like to take this opportunity in saying that my husband isn’t perfect, no one is he did make a mistake, and he is sorry and regretful but please take into consideration that without my husband I cannot live, as I love him dearly, with all my heart . . . “
19. When examined about the “mistake” the Applicant said at first that the mistake was made when he was young. It was put to her that if he came to Australia when he was 21 the mistake must have occurred in his high school days. She agreed that this was so. However and in the course of her cross-examination she subsequently accepted (but with considerable reluctance) that the “mistake” could not have occurred at school. She finally admitted (and with equal reluctance) that the “mistake” was that he had told her that he made a false application for a protection visa. She said that she was told about this before the marriage; she also said that “I can’t tell you what the mistake was except that I was told that the protection visa application was false”.
20. As regards her trip to the Lebanon, the Applicant said that his parents do not work and that she supported them “sometimes”. She indicated that the Visa Applicant has a card which enables him to draw money from her, the Applicant’s, account.
21. In summary then the position is that the Applicant is devoted to the Visa Applicant and is supporting him. Her circumstances are such that she cannot join him in Lebanon. She knew that he had made a false protection visa claim prior to the marriage.
Part C: The Evidence of the Applicant’s Mother
22. The evidence of the Applicant’s mother, Caterina Carini was given in the form of her statement, Exhibit A4. There was hardly any examination of her evidence which was in no way controversial, and which is therefore accepted. The Applicant’s mother is not well and needs the support of her daughter, the Applicant.
Part D: The Evidence of the Visa Applicant – Evidence in Chief
23. The Visa Applicant said that he is a cement renderer; this indeed is the occupation specified in Exhibit A5, which he had before him when giving evidence and which he said was correct.
24. The Visa Applicant was born on 10 January 1977 in Beirut. He said that in High School he became involved in a group which distributed pamphlets. Those pamphlets were distributed in the street and by putting them on car windscreens. Those activities continued at university. The group was concerned in particular as to the Syrian presence and influence in Lebanon.
25. As I have indicated, the evidence of the Visa Applicant took the best part of two days. A considerable part of that evidence had to do with demonstrations which occurred when an interview with General Aoun was cancelled. He was asked whether he attended demonstrations. He answered that although he urged his fellow students to participate in them he did not attend all of them. In particular and in respect of a demonstration at St Joseph’s University he said that he did not attend it. In respect of another demonstration and which he happened to be passing, he noted a military presence and accordingly “things became stressful and I had to leave”.
26. The Visa Applicant said that he twice reported to a police station. On the first occasion his mother told him that his presence was required; on the second occasion he attended voluntarily on the advice of a friend.
27. In his protection visa application the Visa Applicant said that he led twenty students in a particular demonstration. In his evidence he said (repeatedly) that he was “one of the leaders”. The Visa Applicant said when his examination in chief resumed in the afternoon of the first day that he had, as stated in his protection visa application, been, for a long time, a student activist. He said that he is not currently working, that the country is in very bad shape and that there are no job prospects.
28. When asked how he and his parents are managing he answered “I am supporting myself through my wife and my parents are looking after themselves. My father has a bank account which draws interest and he receives support also from my brothers. We don’t pay rent because we own the apartment – in fact we own the whole building”.
29. The Visa Applicant said that he came to visit Australia in September 1998 in order to visit his two brothers in Australia during the university summer break. He was a first year mathematics student at Lebanon University in 1997/1998. He said that he intended to return to Lebanon a month after the new semester (his second year of study) commenced. He asked his father to arrange for his re-enrolment at the university. However, his father was unable to procure his re-enrolment and his father was also unable to obtain a reference for him to enable him to attempt to enrol in another university in Lebanon. He went on to say that his father tried to enrol him four or five times over a period of three months. (It was at this stage that the Tribunal realised that his father was in the room, with the Visa Applicant, while he was giving evidence and accordingly, he, the father, was asked to leave that room while the Visa Applicant continued his evidence.)
30. The Visa Applicant was then asked why it was that a protection visa application was lodged only after the expiry of twelve months. His answer was that he went to Australia and stayed for two months. His father told him that he could not be accepted at the university because he was a “trouble-maker” and “disrupted classes”. His father asked him to wait. His father then after failing to have him enrolled at Lebanon University tried (without success) to have him enrolled at another university in Lebanon. The Visa Applicant stated that “this consumed a lot of time and this is why I applied for a protection visa later because I didn’t really want to stay in Australia”.
31. He was asked whether Lebanon University advised him of the marks obtained by him for his first year. He answered “no they didn’t because if they did I could have enrolled in another university. And the university refused to give me a character reference”.
32. The Visa Applicant was then examined as to the interview at the Australian Embassy in Beirut on 15 January 2004. He said that his wife was in Lebanon at the time and came with him to the interview but was prohibited from being present in the interview room. The Visa Applicant was asked whether there was an interpreter present. He answered “no”. He said that there were two persons with him, a person conducting the interview (Ms Marisa Dominello) and a Lebanese case officer (“Sandra”) who did some interpreting.
33. The Visa Applicant said that the interview commenced in English but was subsequently conducted in Arabic. Mr White put it to him that he was concerned about being interpreted properly and he answered “yes”. He went on to say “they asked me to speak in Arabic but I wasn’t sure that she was an accredited interpreter. At some times she interpreted wrongly and when I protested and said I didn’t say that, she stopped talking”.
34. The Visa Applicant went on to say that he told Ms Dominello that he was present at demonstrations; he said also that there was some controversy about a demonstration (at the MTV Building) which he had not mentioned previously. The Visa Applicant said that this demonstration occurred after a demonstration at the Ministry of Justice (which he did not attend); in relation to the MTV Building demonstration he said he was passing at the time and saw some friends and joined them but left when matters became heated. He said “I am lamenting this sort of mistake. I didn’t talk about it before because no one asked me”.
35. The Visa Applicant was asked whether being concerned about military service, he had been obliged to do military service on his return to Lebanon. He said that he did not have to do military service because he was excused by reason of the fact that he had (on his return to Lebanon) been out of the country for five years. Further examination in chief dealt with what the Visa Applicant described as confusion as to what demonstrations he had participated in and also as to his claims to have been detained. He agreed that he was never detained in the sense that he was locked up or put in a cell. On each of his two visits to a police station he was examined for about twenty to thirty minutes, but was kept waiting before he was asked questions.
36. The Visa Applicant insisted that his protection visa application was not exaggerated. However, he did say that he was “one of the leaders” and not “the leader” in respect of a particular demonstration. When it was put to him that he had told Ms Dominello that he had exaggerated, he said that the interview was stressful and that there was confusion and that it all became very tense and that he was accused of lying. The level of noise, so he said, was so great that his wife (who was outside) became upset and that he felt that he had to leave “and check on my wife”.
37. The Visa Applicant said also that whenever he tried to correct mistakes “we never got a conclusion”. He was asked again whether he had admitted that he had exaggerated his claims; although it was pointed out to him that this was a question, like so many others, which required a “yes” or “no” answer, it resulted in yet another long answer culminating in “yes, at the end I was really tired and I wanted to finish the interview”.
38. When the hearing was resumed on 11 November 2004 the Visa Applicant was asked why he described himself as a cement renderer when in fact he was a mathematics student. He answered “in my youth I did different kinds of jobs like distributing newspapers and one of them was cement rendering”. He was then asked when he last done any cement rendering and he answered “I can’t remember”; he then agreed that he had done work of this nature a long time before commencing university.
39. The Visa Applicant attended Ashrafreh High School which is a public high school. However he failed his final year and was not allowed to repeat that year at the same school, and accordingly completed the equivalent of an Australian Higher School Certificate at El Dikwina High School, and finishing in 1996. He said that he obtained good marks in scientific subjects at Lebanon University in 1996/1997; he said also that he took five subjects being: physics, chemistry, algebraic analysis, arabic and french. When asked whether his marks were high he answered “I know that I succeeded but I don’t know what marks I got because I have work to do”. When asked what work he was referring to, he said that he was working part-time for a magazine and after the university term finished worked full time on that magazine to increase its circulation and “that is why I couldn’t know my marks”. When asked if he left the job to come to Australia, he said that it was only a seasonal job and that it ran only for three months.
40. The Visa Applicant was asked whether he had any document of any kind which indicated that he had been a student at Lebanon University. He answered that he had a university identification card which he used “when I applied for my immigration in Australia”.
41. The Visa Applicant has two brothers in Australia. He thought that Philippe came to Australia in 1991 and Roger in 1995 or 1996. He did not know whether they applied to migrate to Australia but thought that Roger came as a tourist in 1995 or thereabouts.
42. At this stage Mr White referred to the interview in January 2004 and in particular asked the Visa Applicant whether he was concerned that other people in the waiting room could hear what was being said in the interview. He answered “everyone in the waiting room could hear because the interview room was adjacent”. The Visa Applicant said that the switch from English to Arabic took place half way through the interview. When asked whether he admitted that his protection visa claim was false, he said that he did not; he said categorically that everything in it was correct and nothing was fabricated.
43. He was then asked whether he ever told his wife that he made a “mistake” in his protection visa application. A very long conversation with the interpreter resulted in the answer that he had told her about a “mistake” and that the mistake was “the MTV Building and I wasn’t the leader”.
44. Further examination in chief as to demonstrations indicated that he did not attend the Ministry of Justice demonstration because “I am scared to go”. He said also that he did tell the RRT everything except that the MTV demonstration “slipped my mind”.
Part E: The Cross-Examination of the Visa Applicant
45. The Visa Applicant was asked when he told his wife about a mistake. His answer was that it occurred after the Embassy Interview and that it did not occur prior to that time.
46. Mr Allatt put to the Visa Applicant that his wife had referred (four times) to a “mistake” in her statement dated 24 February 2004 (Tp144-p146) and that she had given evidence that he had told her before marriage that he had made a false refugee claim. Mr Allatt went on to put it to him that if this were so he must have told his wife in the period between January and July 2002. Mr Allatt furthermore put to him that there were contradictions as between his protection visa application and the RRT findings. The Visa Applicant said “there are no mistakes – my wife doesn’t understand everything like small things. She doesn’t know all the details”.
47. When asked again how he accounted for his wife’s evidence as to her being told about a mistake before marriage, he said “there is no false information in my application or my wife’s application and I didn’t hear what my wife said and what I am saying now is the truth and perhaps my wife was upset. I don’t know what situation she was in.”
48. The following exchange then took place:
“Mr Allatt: Your wife was asked what the mistake was and when she was told about it and answered that the mistake was the false protection visa application and that she was told about it prior to marriage. Your wife gave that evidence after being told that the truth usually does better.
Visa Applicant: Yes, the truth is good but I didn’t mention it to her before marriage.”
49. It was put the Visa Applicant that he told the RRT about one demonstration only. (See Tp9 as to the delegate’s summary). It was also put to him that there were other contradictions and in particular as to which police station he was obliged to report at and the fact that he did not mention a police station to the RRT. He answered that it was mentioned to the RRT but that the RRT did not record it.
50. The Visa Applicant was referred to Tp9 which is (as set out previously) a record made by the delegate in respect of the interview. She recorded that he had said that he came to visit his brothers and that after arrival he perceived the difference between Lebanon and Australia and said that he hated Lebanon. His answer was that he didn’t mean that he hated Lebanon, but that he hated the way that people are treated in Lebanon. The Visa Applicant agreed that he obtained his visitor’s visa in September 1998 and that he intended to return a month after the new academic year started and said “I will do my best to make it up” (referring to the missed study). He again insisted that he did not know his marks for his first year. When asked how without knowledge of his marks he could be accepted at the University of Sydney where he had applied to study, he answered that he was accepted but that he could not attend because he did not have a student visa. (There was no evidence of any acceptance by the University of Sydney.)
51. The Visa Applicant said that he prepared the protection visa application himself and in English because “I am an educated person speaking English, French and Arabic”. He went on to say that he could read and write in all three languages. It was put to him that he wanted to stay in Australia because he perceived a difference between Australia and Lebanon and that he made a protection visa application for this reason only. He answered that he made the application “in order to secure myself”.
52. In further cross-examination the Visa Applicant said that that he didn’t want to stay in Australia but that his brothers persuaded him to do so and in consequence of which he extended his visitor’s visa twice.
53. Within two months after his arrival in Australia he knew that he was not re-enrolled at Lebanon University. He had spoken of an attempt to use political influence to get him re-enrolled but knew by Christmas of that year that political influence (if there was any and which is doubtful) had failed. When asked what political influence he was referring to he said “I don’t know exactly. I don’t know whether it was political or not”.
54. When asked how long after his arrival (on 12 September 1998) he intended to stay, the Visa Applicant answered “3 months”. He agreed that he would on this basis have returned in December 1998. He agreed also that he extended his visitor’s visa twice and on the second occasion until September 1999. When asked whether he sought the second extension he said that he had no records.
55. He was then asked why he delayed making his protection visa application if he genuinely had fears. He answered “because my military service card was supposed to be renewed in December. My father couldn’t register me as a student”.
56. He was then asked if his answer was that he did not want to return because he would then have to go into the army. He answered “I mentioned this several times. I needed to be at university to get an exemption card.”
57. The Visa Applicant said that he would not have to do military service in Lebanon for so long as he was a registered student. When it was put to him that this was why he sought to re-enrol at the University of Sydney in June 1999, he answered that his father was also trying to get him enrolled at another university in Lebanon.
58. In further cross-examination the Visa Applicant explained that to obtain one’s university marks, one went to a notice board. He has never looked or asked anybody to look at his marks but insisted that his friends said that he had passed. When Mr Allatt put it to him that as a political activist he would not have had time for studies he said that his political activity happened occasionally only and only when there was an event of a political nature. When it was put to him that he was not a full time political activist his answer was that he was but it wasn’t an everyday job. Mr Allatt then asked him about his description of himself as a cement renderer. He answered that he was learning the job of cement rendering but that he was not a qualified cement renderer.
59. The Visa Applicant was then referred to the letter by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) dated 26 January 2004 (Tp132-Tp133) which contained a statement that he had admitted that he made false claims and provided contradictory information. He said “I didn’t confess except when I wanted to see my wife”.
60. He said that he sent the letter to his wife to take it to a solicitor. He said that he did not speak to this solicitor and that his wife did so; he said that he gave no instructions directly to the solicitor.
61. The Visa Applicant was then referred to a letter sent by his solicitor Mr Issa to Ms Dominello (Tp138) in which Mr Issa stated:
“(b) With regard to paragraph b, the applicant submits that at the time of applying for a protection visa he had provided evidence to meet the criteria of the visa. At the interview conducted on 15 January 2004 the applicant admitted that some of the facts previously provided were fabricated.”
It was at this time that the Visa Applicant said that the solicitor asked him about the interview and that he then admitted that he had spoken to the solicitor. When asked why the solicitor then admitted fabrications he simply answered “I didn’t fabricate any information”. When he was again asked why his solicitor had written a letter containing admissions to the contrary his answer was “I didn’t fabricate – I tried to say things in the right way”.
62. It was again put to him that his solicitor admitted fabrications and asked how this could have occurred without his instructions. His answer, although it was a very long answer, was translated as “because the interviewer was shouting at me because of my existence in the police station”.
63. The Visa Applicant was then asked about the fact that he asked his wife to marry him after six weeks of having met her and whether this was not hasty. His answer was “this is what happened. Because in her home they have this kind of mentality and I was the first man to speak to her. I was the first man to court her”.
64. He was referred to his answer in examination-in-chief that five years absence in Lebanon exempted him from military service and it was pointed out to him that he left Lebanon on 12 September 1998 and left Australia on 12 September 2003, he said that the five year absence exemption was a policy change and “without a change of policy I can’t leave Australia”.
65. He was asked if this was the reason why he withdrew from the High Court class action launched by Adrian Joel. He answered that he wanted to go back and complete the papers and lead a normal life.
66. The Visa Applicant was then asked to read clause 17 of Exhibit A5; he did so perfectly and in English. Clause 17 of Exhibit A5 reads as follows:
“[17] In Lebanon I continue to maintain a low profile, as I am concerned for my safety. I am no longer required to complete military service, because of the fact that I am now married. My ultimate decision to return to Lebanon was made easier by the fact that military service is no longer an issue and at that time considered that the degree of danger has lessened.”
67. It was pointed out to the Visa Applicant that he said nothing of a policy change and that he had said that he would be exempted because of marriage. He answered “this is something wrong or is a mistake. The correct reason is that I was living overseas for five years. You can see this in my military ID. This is just a mistake”.
Part F: Re-examination of the Visa Applicant
68. In re-examination the Visa Applicant said that for an exemption from military service marriage was not sufficient and that one needed to be married and also a parent, but that there had been a policy change so that the military service exemption was available after five years absence from Lebanon.
69. The Visa Applicant was asked about his wife’s statutory declaration dated 24 February 2004. He said that he did not have a copy of it and could not remember when she had made it.
Part G: The Evidence of Albert Assaf – The Father
70. Mr Albert Assaf gave evidence from Lebanon through a conference telephone with the aid of an interpreter. Mr Allatt did not insist on a statement by him. He will be referred to in brief as “the father”.
71. Although the father’s evidence was at all times very vague he did recollect that he tried and failed to have his son re-enrolled at university (two or three times) and that he asked (without success) for a certificate from the university. He said when he told his son, the Visa Applicant, the reply was “wait – we will see what we can do”.
72. When asked whether he tried any other course he said “I tried to find people to help me but I couldn’t do anything because there are antis in Lebanon”.
73. When asked when he finally abandoned any chance of having his son re-enrolled he answered “I don’t know, I am not an educated person, I don’t remember what month it was, I am not an educated person”.
Part H: The Evidence Analysed
74. The Visa Applicant’s evidence was often evasive and especially in that answers often did not relate to the question posed. It was also often untruthful.
75. The evidence before me indicates that there may well have been some political activity of a very minor order but not in any way sufficient to cause the Visa Applicant to have fears as to his safety. His anxieties were (as the evidence ever-increasingly clearly indicated) directly related to military service. It is no coincidence that the gap between departure from and return to Lebanon was exactly five years. The Visa Applicant would appear to be rather a timid person; in respect of at least one demonstration he was “scared” to attend. And it must be remembered that he was exempt from military service for so long as he was enrolled at a university; this no doubt accounts for his attempt (assuming, which may not be so, that there was such an attempt) to enrol at the University of Sydney.
76. It is hard to know what to make of his evidence as to Lebanon University. That he was unconcerned as to his marks is not credible. In general terms students are concerned about their marks except when they have done so badly that the results or marks do not matter.
77. The Visa Applicant’s evidence was that having failed a year at high school he could not repeat that year. He said that it was not difficult to get into the mathematics faculty at Lebanon University. The subjects taken do not indicate a mathematics faculty, but things may be ordered differently in Lebanon. His failure to be re-enrolled may have been caused by poor marks or by failure. There was, at the conclusion of the hearing no piece of documentary evidence of any kind as to his having been enrolled at university or as to his failure to be re-enrolled. As to why he would describe himself as a cement renderer when he performed some work of a minor nature of this kind many years previously, is not at all clear.
78. The evidence considered as a whole demonstrates in clear terms that the Visa Applicant was never a refugee, knew that he was never a refugee and made false protection visa claims in his original application, before the RRT and in his application to the Respondent under section 417 of the Migration Act 1958 (“the Act”). The Visa Applicant went even further and joined a High Court class action run by Adrian Joel. That his claims as to being a refugee were false is demonstrated in stark terms by his admissions to his wife, his admissions at his Embassy interview, and by his own solicitor’s letter as set out at T13. His claim in his evidence that he told his wife that he was untruthful only in that he claimed to be “a leader” whereas he was one of a number of leaders was not true.
79. Faced with his own admissions, the Visa Applicant attacked the Embassy staff who conducted the interview. As I have indicated, Mr Issa from the bar table at an early stage of the proceedings said that the interpreter was not accredited. That statement was unfortunate given that the Visa Applicant’s proficiency in English is good (and indeed, as I have said, better than that of either of the interpreters who assisted). The Applicant gave evidence as to the interview becoming heated and that in consequence she became upset. I do not accept that the interview was conducted in such a manner that it could be overheard by persons in the vicinity. It is possible that it did become heated. When an interviewee persists in allegations that are contradicted by evidence it would not be surprising if voices are raised. It may be that the Visa Applicant felt that having made such admissions he felt, or was advised, that he had no option but to attack the interview process itself. If so, that course of action was ill-advised. Even more to the point is the fact that a protection visa application was lodged so long after his arrival in Australia. The decision maker at Tp10 referred to the judgment of Heery J in Selvadurai and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 in the following terms:
“Heerey J in the Federal Court matter of Selvadurai and MIEA (decided on 20 May 1994, Part B3) stated that delay in making application for refugee status was a legitimate fact to take into account in assessing the genuineness, or at least the depth, or fear of persecution”.
80. The Visa Applicant was on the evidence before me involved in political activity only to a peripheral and marginal extent. He apparently attended some demonstrations (in the company of many) but was too nervous and afraid to attend others. He said that he was involved in the distribution of pamphlets but there were none in evidence. His behaviour is very far from that of a leader or even one of a number of leaders; it is rather more apposite to one of the very nervous led.
81. The Visa Applicant’s relationship with Lebanon University is odd. He was not a good student at school; having failed a year he was obliged to complete his HSC equivalent at another school. He said that he passed his university first year but did not know what his marks were. As I have said there cannot be many university students who are indifferent as to what marks they attend, especially when they were so easily ascertained. His evidence that the university refused to provide him with an academic record or transcript is unlikely. It is possible (and indeed in my view probable) that he failed or did not do sufficiently well to allow him to re-enrol.
82. This matter was listed for a two day hearing and being 10 and 11 November 2004. It was possible in that time to complete the evidence but not to hear closing submissions. Accordingly, final submissions were heard on 29 November 2004.
83. During the course of submissions by Mr White I expressed surprise that there was no document before me which would substantiate the fact that the Visa Applicant had been a student at Lebanon University. It was in these circumstances that I agreed to allow Mr White an opportunity to procure evidence to that effect and a further hearing was scheduled for 15 December 2004 to enable him to present any such evidence. On 15 December 2004 Mr White furnished the Tribunal with a number of documents, some in Arabic (without translations) and coupled with an undertaking which, I accepted, to furnish translations to the Tribunal. (Those translations were not provided to the Tribunal.) The documents in question consist of;
(a) two recent newspaper reports as to refusals of re-enrolment of two students because of anti-government activity.
(b) a newspaper report similar to that in (a) but in relation to a group of school students.
(c) two website extracts which indicate that the last independent president of Lebanon was assassinated 20 years ago.
(d) a document evidencing the Visa Applicant’s enrolment in 1997/1998.
(e) the Visa applicant’s “licence” excusing him from military service signed by a general.
(f) a letter by an attorney named Roland Gahantous dated 8 December 2004, reading as follows:
“I, the undersigned, Lawyer Roland Ghantous, hereby certify that I was charged before MR BACHIR ALBERT ASSAF, to make inquiries about not giving him the documents, attestations, grades and the good character certificate from the Lebanese University, Mathematics branch II, and particularly to the side of the results of the academic year 1997-1998 of the first year, and we were faced by refuse for political reasons and his political adhesion, the matter which lead (sic) not to register him in the second year, like some other colleagues of him.
To remark here that it is not allowed because it is not allowed to change his education branch because MR BACHIR ASSAF is included by the system of Service under Flag (Military Service), and this leads to prevent him from temporary exemption in case he changed his Mathematics Branch specialization.”
(g) photographs of the Visa Applicant taken in 1991 when he was thirteen, one showing him in military garb and the other showing him installing a public address system alleged to have taken place at a student rally.
84. The documents tendered on 15 December 2004 do not in my view have much probative value for the Visa Applicant. Newspaper reports concerning other individuals are of little relevance. So for that matter are photos of him at the age of thirteen. There is now (albeit belatedly) evidence that he was a student at Lebanon University in 1997/1998. But so much could have been accepted because if he had not been a student, he would have been in the army. There was however, still no evidence as to his marks. During his closing submissions Mr White made two points in particular. First, he noted that the Visa Applicant had said that the statute pursuant to which after five years absence from Lebanon he was excused military service was altered about a year before the Visa Applicant returned to Lebanon. Secondly, he noted also that the Visa Applicant did, when he lodged his protection visa application specify as one of his grounds that he was a concerned that as a Christian in military service he would be subjected to persecution. The RRT findings in this regard quoted earlier in these reasons at clause 7 are relevant.
85. Although the Visa Applicant did indeed make such a claim in his original protection visa application, there was virtually no evidence before the Tribunal as to the military service aspect. The evidence before the Tribunal concentrated entirely on his alleged political activities. The evidence before me indicates that his political activities were, as I have said, of a very low order and that he was by no means “a leader”.
86. The Visa Applicant gave evidence as to exemptions from military service in consequence of marriage and/or parenthood. That evidence is best (and perhaps kindly) described as confused. On the basis that I can accept that the statutory amendment permitting exemption after five years absence from Lebanon was indeed enacted about a year before his return, it was certainly helpful for him. And as I have said, he returned to Lebanon five years exactly after he had departed.
87. As I have indicated, and as the evidence evolved, it became ever- increasingly clear that the Visa Applicant’s motives for his applications were dictated by his extreme reluctance to do military service. As a university student he was exempt; once he could not re-enrol (for whatever reason) he had to get into another university in either Lebanon or elsewhere. Although attempts in Lebanon failed, so he said, he said that he was accepted at the University of Sydney but could not take up a position because he did not have a student visa. It is unlikely that the University of Sydney would have accepted him in the absence of records of his prior tertiary education. Once he could not obtain a university place in Australia, he had to stay in Australia in order to avoid military service. In the end result it was the five year absence exemption which was apposite and helpful for him to avoid military service. Other and confusing evidence as to exemptions related to marriage and/or parenthood is open to doubt.
88. As is so often the case in matters of this nature money matters were shrouded in mystery. His parents do not work but they own their own apartment and the building in which it is situated; later evidence suggests that this may have occurred through inheritance and that they own it in common with other members of their family. The Applicant’s devotion to the Visa Applicant cannot be doubted. She is furnishing him with financial support and at one stage the hearing had to be adjourned when she became too upset to continue. He has reason to be grateful to her. However, his evidence as to the fact that he was able to meet and marry her with such speed because he was the first man to approach her is also relevant.
89. It follows of course that the Visa Applicant committed numerous breaches of section 234 of the Act; this included his evidence before me, which was often fabricated. There is one aspect of his evidence which can be accepted. His original intentions may have been to enter Australia as a tourist; his prolonged stay here arose from his very strong desire to avoid military service, but not because he was a refugee. That he obtained a passport in the first place and the fact that he has not been subjected to any pressure of any kind since his return to Lebanon is significant. Of equal, if not greater significance is the fact that the period between arrival and departure was exactly five years – the statutory exemption period.
90. It follows that the Visa Applicant does not pass the character test.
Part I: Direction under section 499(2) visa refusal and cancellation under
section 501 of the Migration Act 1958 (“Direction 21”)
91. In this Part I references to numbered clauses relate to numbered clauses in Direction 21. The primary considerations are contained in clause 2.3 reading as follows:
“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.”
92. Clause 2.3 must be read in conjunction with clause 2.5 reading as follows:
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk or recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
93. There are no children who are relevant.
94. In respect of deterrence generally, I refer to clauses 87 and 88 of my decision in Re Ynson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 844 in which I referred to certain other decisions of this Tribunal and reading as follows:
“[87] In the context of deterrence, I refer to Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935; at paragraph 47, Deputy President Purvis QC stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
[88] As to whether visa refusals do in fact have a deterrent effect is difficult to evaluate, having regard to the number of cases of this nature coming before the Tribunal and the absence of any statistical evidence one way or another. However, to reward the Visa Applicant with a visa in these circumstances and in the light of his conduct would be altogether incorrect.”
95. In respect of recidivism and deterrence I refer also to clauses 85 and 86 of my decision in Ynson (supra), as follows:
“[85] In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted at paragraph 36 that:
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.
[86] In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at paragraph 33, that:
“In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.”
96. I refer furthermore and in the same context, to clause 57 of the decision of Deputy President Chappell in Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 and where he quoted from the decision of Deputy President McMahon in Phuoc Tuong Tran; clause 57 of that decision reads as follows:
“The legitimate interests of the Australian community in the maintenance of an ordered migration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be; granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
‘Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour (at 17).’”
I do not think that recidivism is a significant factor, although so prolonged a history of false dealings with the authorities leads me to believe that it cannot be discounted totally; see Cheng Chea and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1315.
97. In respect of deterrence there is of course no concrete evidence as to the effect of refusals or of decisions by this Tribunal. It is hardly likely that Tribunal decisions are readily available in Lebanon in the sense that the Tribunal web-site is easily accessible. It is likely though that Tribunal decisions become known in the community in Australia. To grant a visa in these circumstances would, in my view, send entirely the wrong message.
98. I consider having regard to clause 2.12 that Australian expectations would favour refusal of a visa.
99. As to clause 2.17, the hardship to the Applicant will be considerable given that I accept that she cannot be reunited with the Visa Applicant in Lebanon. But she knew before she married him that he had no right to be in Australia and she knew that he had made false protection visa claims. The Visa Applicant’s two brothers in Australia did not give evidence, and there is thus no evidence as to the hardship factor so far as they are concerned.
100. The Visa Applicant’s conduct was undoubtedly serious within clause 2.6. In all of his applications he made statements which were false. He went further and joined the High Court action to which I have referred; his evidence before me was often fabricated.
101. This then is yet another of the “usual situation” cases. By this is meant that that a person enters Australia under a tourist visa and then seeks to remain in Australia through a whole series of false protection visa claims and including in this case something additional in the joining of the High Court class action. This case differs from the “usual situation” cases in one respect and that is that I accept that the Visa Applicant did not originally come to Australia in order to remain here permanently. Departure from Australia in “usual situation” cases generally takes place only after marriage, which occurs, so-to-speak, at the “end of the line”. Cases such as these are almost invariably decided against the Visa Applicant in the absence of special circumstances (for example an Australian citizen child or because of cogent medical reasons). There have been so many “usual situation” cases that it is unnecessary for me to cite them. And consistency in decision making is desirable; see Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634.
102. This is not a case in which the discretion can be exercised in favour of the Visa Applicant and accordingly the decision under review must be affirmed.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: Melinda Di Condio
AssociateDate/s of Hearing 10, 11 and 29 November 2004 and
15 December 2004
Date of Decision 31 January 2005
Counsel for the Applicant Mr E White
Solicitor for the Applicant Mr S Issa, Firmstone Lawyers
Solicitor for the Respondent Mr M Allatt, Australian Government Solicitor
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