El Ayoubi and Minister for Immigration and Multicultural Affairs

[2000] AATA 194

DECISION AND REASONS FOR DECISION [2000] AATA 194

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No N1998/1460

GENERAL ADMINISTRATIVE DIVISION          )     No N1999/592        

Re      RABIH EL AYOUBI

Applicant

ReMAHMOUD HACHEM EL AYOUBI

Second Applicant

And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          

Respondent

DECISION

Tribunal       Dr D Chappell         

Date10 March 2000

PlaceSydney

Decision      The decisions under review are affirmed.          
   (sgd) Duncan Chappell
  ..............................................
  Dr D Chappell
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 103 (parent) visas – joint applications of former spouses – decision to cancel and refusal to issue – citizens of Lebanon – not of good character due to general conduct – history of immigration malpractice – IRT finding of forged divorce certificate and bigamous marriage - provision of false information in attempt to secure residency for both visa applicants – discretion not to cancel visa or to refuse grant of visa despite adverse findings as to applicants' characters – children Australian citizens – consideration of hardship to visa applicants and children – children over age of majority – undue harm to Australian community resulting from exercise of discretion not to cancel or not to refuse visa – mitigating factors insufficient to outweigh need for deterrence and protection of Australian community.
Migration Act 1958 s 501(2)(a)
McDonald v Director General of Social Security (1984) 1 FCR 354
Hsiao v Minister for Immigration, Local Government and Ethnic Affairs (1992) 36 FCR 330
Minister for Immigration, Local Government and Ethnic Affairs v Naumovska (1983) 88 ALR 589
Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 

REASONS FOR DECISION

10 March 2000        Dr D Chappell         

BACKGROUND
Joint Applications

1. With the agreement of both parties, and with the consent of the Tribunal, this matter concerns the joint consideration of two applications. The first of these is an application by Mr Rabih El Ayoubi (the first applicant: REA) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s 501 of the Migration Act 1958 (the Act) to refuse to grant to his mother, Ms Amira Munir Dib, a sub-class 103 (parent) visa. The refusal was based on the finding that Ms Dib was not a person of good character.

2. The second application is by Mr Mahmoud Hachem El Ayoubi (the second applicant:  MEA), the first applicant's father, for review of a decision made by a delegate of the Minister pursuant to s 501 of the Act to cancel his permanent residence visa to remain in Australia.  This refusal was based on a finding that Mr Mahmoud El Ayoubi was also not a person of good character.  Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review both decisions.

3. Mr Michael Jones of Parish Patience Solicitors and Attorneys represented both applicants at the hearing.  Mr Rabih El Ayoubi and Mr Mahmoud El Ayoubi both gave personal testimony to the Tribunal, as did the following witnesses on their behalf: Mrs Amira Dib and Mr Dagher Dagher.

4. Ms Rhonda Henderson, of counsel, instructed by Ms Juliet Carrington, a departmental advocate, represented the respondent.  Mr Joseph Petyanszki was called as a witness on behalf of the respondent.  The Tribunal was grateful for the interpreting assistance provided during the hearing by Ms Mariella Manna.

5. The Tribunal had before it documents and supplementary documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act (1975) (the T and S documents).  The following exhibit was also received into evidence on behalf of the applicant:
   Exhibit No.     Description    Date   
   A1      Statement of Purposes of Dagher Family Union          Undated        

General Chronology

1. The evidence presented by the parties established that the following general sequence of events led to the present applications before the Tribunal.  Mr Mahmoud El Ayoubi and Ms Amira Dib were both born in Lebanon - Mr El Ayoubi on 1 January 1946 and Ms Dib on 10 December 1956.  The couple were married in Lebanon in 1974;  divorced on 6 September 1988;  and remarried on 15 December 1988 (MEA T46:225).  It should be noted that the respective dates of this divorce and remarriage were verified from official records. During this period of their marriage Mr El Ayoubi and Ms Dib had three sons – Rabih (born 23 January 1977) and twins Sami and Samer (born 30 April 1981).

2. On 10 November 1992 Mr Mahmoud El Ayoubi lodged an application for a visitor visa at the Australian Embassy in Beirut.  In that visa application he replied to a question about his marital state that he was "now married" (T9:86).  On 7 January 1993 Mr Mahmoud El Ayoubi arrived in Australia on a visitor's visa valid for a period of three months (MEA T50:242).  On 30 March 1993 he was granted an extension of this visa to remain in the country until 7 July 1993 (MEA T50:242).

3. On 16 May 1993 Mr Mahmoud El Ayoubi married Ms Kahnoum Akra.  On the basis of this marriage he applied for permanent residence in Australia on 20 May 1993.  In his application he claimed that he was divorced from his first wife, Ms Amira Dib, and attached a divorce certificate dated 22 December 1992 (MEA T9:86).

4. Mr Mahmoud El Ayoubi and Ms Amira Dib were legally divorced in the Lebanon on 18 April 1994 (MEA T47:226).  On 16 April 1995 Mr Mahmoud El Ayoubi's son Rabih arrived in Australia (MEA T15:96).  On 13 June 1995 Mr El Ayoubi's twin sons Samer and Sami also arrived in this country to join their father (MEA T20: 145,146).

5. On 19 May 1995 an application was lodged on behalf of Mr Rabih El Ayoubi to remain permanently in Australia (MEA T17:103-128).  Similar applications were lodged on behalf of Sami and Samer on 22 June 1995.  On 17 July 1995 Mr Mahmoud El Ayoubi was granted permanent residence in this country on the basis of his marriage to Ms Kahnoum Akra.  His three sons were granted permanent residence as a consequence of his successful application (MEA T28:185).  About one month after the granting of their permanent residencies, Mr Mahmoud El Ayoubi and his sons moved to Sydney (MEA T41:214;  MEA T49:238).

6. On 1 November 1995 Ms Amira Dib lodged an application to migrate to Australia.  Her application was sponsored by her son Rabih El Ayoubi (MEA T20:131-138).  On 10 April 1997 Sami and Samer applied for Australian citizenship, as did Mr Mahmoud El Ayoubi and Mr Rabih El Ayoubi some months later (see MEA T56).

7. On 5 August 1997 the Australian Embassy in Beirut notified the Department of Immigration and Multicultural Affairs (DIMA) that the divorce certificate dated 22 December 1992 which had been relied on by Mr Mahmoud El Ayoubi and Ms Amira Dib in their respective applications was not genuine (MEA T46-47:222-227;  T58).  On 14 August 1997 Mr Mahmoud El Ayoubi was issued with a notice of intention to cancel his permanent residence visa under s 109 of the Act (MEA T50:242).  On 19 August 1997 Mr Mahmoud El Ayoubi replied to this notice of intention.  In his reply he claimed that he had properly divorced his wife under Islamic law but that he had done so in secret because he feared the consequences from his wife if he disclosed the divorce.

8. On 7 November 1997 Sami and Samer El Ayoubi were granted Australian citizenship.  On 4 December 1997 Mr Mahmoud El Ayoubi made a further response to the notice of intention to cancel his visa under s 109 of the Act.  On 9 January 1998 his visa was cancelled under this section of the Act and as a consequence of this cancellation Mr Rabih El Ayoubi's visa was also cancelled under the same section (MEA T51:244-258).

9. On 11 March 1998 Ms Amira Dib's application for migration was refused under s 501 of the Act (MEA T57:272-274).  The Minister's delegate Mr Joseph Petyanszki, the Principal Migration Officer (Compliance) at the Australian Embassy in Beirut, provided the following reasons for this refusal:

   Over a period of four years the Applicant has:

   ·     Entered into a conspiracy with her former spouse (Mahmoud El Ayoubi) to deceive DIMA (the Department) both in Australia and in Beirut to gain Australian permanent residence and citizenship for herself and her family.

   ·     In January 1993 the Applicant's spouse entered Australia as a visitor. He married and based on this marriage consequently obtained Australian Permanent Residence.

   ·     The Applicant's spouse then sponsored his three children to Australia as subclass 101 Dependent Children. They arrived in June 1995.

   ·     Soon after the children's arrival in Australia, and El Ayoubi obtaining Australian Permanent Residence, he left his Australian spouse (Khanoum El Ayoubi) in Melbourne and moved to Sydney with the children.

   ·     According to statements made by Khnaoum [sic] El Ayoubi, Mahmoud El Ayoubi used her to gain Permanent Residence for himself and his children, and is now attempting to do the same for the Applicant.

   ·     Three months after their arrival in Australia (in September 1995) the children sponsored the Applicant.

   ·     The Applicant lodged a divorce certificate with this application with the date "22 December 1992" stamped at the top of the document.

   ·     This document was authenticated with the Lebanese Ministry of Interior in Tripoli where it was determined that it was a forgery. The Applicant and her spouse were actually divorced the last time on 16 April 1994. Which means that the Applicant's spouses [sic] marriage in 1993 in Australia was bigamous. He has therefore obtained his Australian permanent residence based on a bigamous marriage.

   ·     At interview in Beirut, the Applicant stated she personally obtained the above divorce certificate. She examined the document and said it was hers. When it was put to the Applicant that is it was a forgery she denied any knowledge of this and denied she had obtained the document personally. She denied previously stating she had personally obtained the document.

   ·     The Applicant also presented false and misleading information in relation to her former spouses [sic] current marital circumstances and residence in Australia.

   ·     The Applicant also presented false information stating she has had no contact what so ever with her former spouse over a 6 or 7 year period, and had no intention of living with him in Australia. At an earlier interview she stated she hoped to live with her spouse again.

   ·     When advised that the application was refused the Applicant became very angry stating she and her former spouse (El Ayoubi) had agreed this would be the way for the whole family to have a better life together in Australia.

   Over a period of four years, the Applicant and her former spouse in Australia Mahmoud El Ayoubi, have shown little regard for Australian and Lebanese law. They have:

   ·conspired to mislead Australian Immigration by presenting false and misleading information

   ·entering into a contrived divorce and marriage

   ·obtained and presented a forged document to the Department.

   I therefore find that over a period of four years, on an aggregate of behaviour, the Applicant comes within the parameters of section 501 2(a)(ii)[sic], and I have subsequently decided to refuse her application for a subclass 103 visa.
   (MEA T57: 273-274)

10. The Minister's delegate also declined to exercise the discretion contained in s 501 not to refuse the granting of the visa.  The delegate gave the following reasons for this decision:

    Against this finding I have considered the fact that the Applicant has children living in Australia who are permanent residents. It however needs to be pointed out that the children only managed [sic] gain entry to Australia based on their mother and fathers [sic] conspiracy to mislead DIMA. The eldest child, (Rabih Mahmoud El Mir El Ayoubi) was also aware of this conspiracy and therefore also presented false information to DIMA in an endeavour to gain residence for the Applicant. The Applicant clearly stated the family had planned to obtain residence in Australia through this conspiracy. The children therefore would have been instructed in how to respond to DIMA inquiries to achieve the family objective. Consequently, the Applicant's and her former spouses [sic] behaviour, and the children's obvious knowledge of this conspiracy, far outweigh any mitigating or compassionate circumstances.
    After full consideration of all relevant matters, I am satisfied that the Applicant is not a person of good character and comes within the parameters of Section 501.
    As a delegate of the Minister, I have also considered the exercise [sic] my legislative discretion, and in accordance with Section 501 (2)(a)(ii) I have decided to refuse the application of Ms Amira Dib for a sub class 103 visa. 
    (MEA T57:274)

11. Mr Mahmoud El Ayoubi applied to the Immigration Review Tribunal (IRT) for review of the cancellation decisions relating to his own permanent residency visa and that of his son Rabih.  On 18 September 1998 the IRT set aside the decision to cancel both visas (MEA T59:279-292).

12. On 15 October 1998 Mr Rabih El Ayoubi applied to the Tribunal for an extension of time to appeal against the decision to refuse his mother's application to migrate to Australia (REA T1).  On 17 November 1998 the Tribunal granted this request for an extension of time.

13. On 10 December 1998 Mr Mahmoud El Ayoubi was issued with a notice of intention to cancel his permanent residence visa under s 501 of the Act (MEA T62: 296-297).  On 21 December 1998 Mr Mahmoud El Ayoubi was interviewed by the Department in relation to this notice of intention (MEA T63:298-326).  On 21 April 1999 Mr Mahmoud El Ayoubi was notified by the Minister's delegate that his visa was to be cancelled under s 501 of the Act (MEA T1: 4-5).  On 22 April 1999 Mr Mahmoud El Ayoubi lodged an application for review of this decision with the Tribunal (MEA T1).

14. On 7 July 1999 the Minister's delegate provided the following written reasons for the cancellation of Mr Mahmoud El Ayhoubi's visa:

    4.Mr Sullivan noted the assessment of the applicant's case as set out in Mr Dever's submission.

    5.Mr Sullivan found that the following factors weigh in favour of the applicant's visa cancellation:

    ·     Travelling to Australia on a visitor visa when he had no wish to return to Lebanon.

    ·     Declaring his divorce from Amira Dib and producing a bogus divorce document.

    ·     Marrying Khanoum Akra when he was still married to his former wife.

    ·     Including his 3 sons from his former wife in his application for permanent residence and knowing they would sponsor her as soon as they were granted permanent residence.

    ·     Separating from Khanoun Akra 4 months after the arrival of his sons and relocating to Sydney.

    ·     The sponsorship of Amira Dib by his son Rabih. Mr El Ayoubi had stated at interview that this completed his plan for his family to come to Australia.

    ·     There has been no evidence submitted to the department that Mr El Ayoubi has made any contribution to Australia.

    6.Mr Sullivan took into account the following factors weighing against the visa cancellation:

    ·     His sons are all Australian citizens of adult age.

    ·     His younger son's need of psychological support from their father.

    ·Mr El Ayoubi's claim that he does not wish to re-unite with Amira Dib and that his marriage to Khanoum Akra was genuine.

    7.Mr Sullivan concluded that in all the circumstance [sic], the factors in favour of the cancellation of Mr El Ayoubi's visa outweigh the factors in favour of the applicant being permitted to remain in Australia.

    I have included for your assistance, Mr Sullivan's written comments:

    "I concur with the submission. Mr Elayoubi has entered with a deception with a view to gaining permanent residence in Australia. I, like others who have reviewed this matter, believe his marriage to Khanoum Akra was not genuine.  In entering it he did not reveal that he had not legally divorced Amira Dib. On marriage he sponsored his children. One of them subsequently supported his mother's application for migration. This matter remains outstanding. I rely on no conspiracy theories. Mr Elayoubi's fraudulent migration is a serious matter. His sons are now citizens and beyond the reach of the law as it then stood. However, he is not. It will be a hardship for the children to have their father's visa cancelled as it has been to be denied their mother's presence in Australia. They are adult but their concerns are a significant consideration. However, Mr Elayhoubi's deceit leaves me to conclude he is not a person of good character nor a person who should remain in Australia". 
    (MEA S1:2-3)

LEGISLATIVE AND POLICY ISSUES

1. Section 501 of the Act is the key legislative provision relevant to this matter.  This section was amended by Parliament in a substantial way after the decisions were made by the respondent in regard to both applicants.  However, it was acknowledged by the parties that this amendment did not affect the present proceedings in any way, and that the earlier version of s 501 applied.  The relevant parts of that earlier version of s 501 of the Act provide the following:

   501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

   subsection (2) applies to the person; …

   (2)This subsection applies to a person if the Minister:

   having regard to:

   the person's past criminal conduct; or

   the person's general conduct;

   is satisfied that the person is not of good character …

2. In addition to the Act, the Migration Regulations 1994 (the Regulations) also set out criteria which are relevant to the Tribunal's consideration of both cases. It is not necessary to do more at this stage than note that one of the criteria to be satisfied is the public interest provision contained in Clause 4001 in Schedule 4 of the Regulations (REA T3). It should also be noted that the respondent's Migration Series Instructions (MSI) 164 incorporates ministerial policy and provides guidance as to the interpretation of s 501 of the Act. The relevant edition of this document was issued on 27 April 1997 (see REA T5).

3. Further guidance to decision makers as to the matters which the Government expects to be taken into account when assessing the good character requirement of s 501 of the Act, and deciding whether to refuse a visa if satisfied that the applicant does not meet that requirement, is to be found in a Ministerial Direction made under s 499 of the Act. "General Direction – Visa Refusal s 501 – No 5" (the Ministerial Direction) which is relevant to this matter was issued by the Minister on 25 November 1997 (REA T4). The Direction provides, in part, that:

   2.When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour.

   3.The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens.  Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501.  These matters are:

• where a non-citizen has been convicted of offences, or the non-citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;

• where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody …

  5.If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:

  where the visa applicant has a spousal or partner relationship with an Australia citizen, permanent resident or eligible New Zealand citizen:

• whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);

• if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and

• in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.

  whether the non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought them within the deportation provisions at section 201 of the Act or the visa refusal and cancellation provisions at section 501 of the Act.

EVIDENCE

1. Given the chronology of events that has already been set out it is proposed to examine the evidence presented to the Tribunal under four major headings:

• Lebanese Residence:  Pre-January 1993

• Australian Residence and Marriage:  January 1993 – April 1995

• Application to Migrate by Ms Dib:  November 1995

• Visa Cancellation Actions:  August 1997 – April 1999

Lebanese Residence:  Pre January 1993

1. In his personal testimony to the Tribunal Mr Mahmoud El Ayoubi said that he was a Sunni Muslim and his former wife, Ms Amira Dib, was an Allahwe Muslim.  He said that following his marriage to Ms Dib in 1975 he had lived in El Mina, a town near Tripoli.  He worked as a sales manager in an agricultural equipment factory and also had a boutique.

2. During the 1980s Lebanon was racked by civil strife and violence.  Many political factions and countries were involved including Syria and Israel.  Mr Mahmoud El Ayoubi said that his wife's sister's husband was a militia leader in the north who was a very violent and dangerous person.  During the course of the civil disturbances Mr El Ayoubi said that he began to have a romantic affair with a woman who was a friend of his wife.  His wife discovered this relationship and it caused him problems.  These problems included threats that if he divorced his wife he would be stripped of everything he owned by the militia group associated with her sister.  He said that these were threats which made him fearful so he fled to the Christian region of Beirut.  Once there he said he divorced his wife in 1988.  Ms Dib then took the children and denied him access to them.  There were negotiations about a property settlement and like matters.

3. In 1989 Mr El Ayoubi said that he returned to Tripoli and after being detained for a brief period by Syrian intelligence operatives he was able to apologise to his wife's sister's husband and he resumed living with his wife. Following this resumed cohabitation the couple remarried but Mr El Ayoubi said that after a period of about two years he again began to think of divorcing his wife.  He also applied for a visitor's visa to Australia, although he stated that his real plan was to come to Australia to stay (see in general transcript 8 December 1999:  9-16).

4. Mr El Ayoubi then described how he had divorced his wife for the second time, about two weeks after he had obtained his visitor's visa to enter Australia.  He said that he went to the same sheik who had married him for the second time because he knew the whole story.  He then divorced his wife before the sheik and two other witnesses, and asked to be given his divorce papers but that his wife not be advised of what had occurred until after he had left Lebanon.  This was a religious divorce and as far as Mr El Ayoubi was concerned his marriage was terminated.  However, he left it to the sheik to do the paperwork required to formalise this divorce.  This paperwork could not be completed until his wife had been advised of the divorce and was paid whatever was due on the marriage contract.

5. Mr El Ayoubi said that he had not wished the sheik to tell his wife about the divorce before he left Lebanon because he was frightened that her family might exact retribution.  He had decided to come to Australia and stay in this country because he was fleeing a "very tragic situation" and his own life was at risk (see in general transcript 8 December 1999:  17-19).

6. Mr El Ayoubi was cross-examined by Ms Henderson about the circumstances surrounding this divorce of Ms Dib.  Mr El Ayoubi again stated that "in my view the divorce was final but if you – for official purposes and official departments there was still some papers to be done" (transcript 8 December 1999:  29).  Mr El Ayoubi said that the divorce would be in stages and the first was when the words were uttered three times and that was sufficient to become a divorced man for religious purposes.  It was not compulsory for the words to be uttered in front of his wife but it was sufficient to do so in front of two witnesses.  It was also not compulsory to pay any money.  This was a matter of individual conscience.

7. Mr El Ayoubi said that he had read and understood the documents that had been prepared at the time of his divorce.  He denied that he knew their contents were false, and said that he only learned of this situation at an interview with a Department of Immigration and Multicultural Affairs (DIMA) official, Ms Robyn Byrne in September 1994.  Mr El Ayoubi said that a sum of money had been paid in 1994 by his brother to finalise his divorce from Ms Dib.  He had left a car at the time of his departure from Lebanon and also some money for his children.  When he left Lebanon to come to Australia he had done it in secret and even his children were not aware of his intentions.  He told his children that he had divorced their mother at the airport as he was about to leave for Australia.  He also provided an authority to his brother which paid his army pension over to him.  This was to assist with the support of his children (see in general transcript 8 December 1999:  29-33).
   Australian Residence and Marriage:  January 1993 - April 1995

8. Mr El Ayoubi told the Tribunal that he arrived in Australia in early January 1993 and stayed in Sydney for about three weeks.  He then moved to Melbourne where he had a sister.  He stayed with his sister until he married Ms Kahnoum Akra on 20 May 1993 (transcript 8 December 1999:  19-20).

9. Mr El Ayoubi said that he saw no difficulty in entering into this marriage.  He considered that he was no longer married to his first wife.  His second wife was an Australian citizen who had four children of her own.  Following his marriage he applied immediately for Australian permanent residence on the basis of his marriage.  He subsequently sponsored all three of his sons to join him in Australia.  Rabih came first and then the twins followed later.

10. Mr El Ayoubi said that once his children arrived problems had developed in his marriage with Ms Akra.  There were nine people living in the one house and their financial situation was not good.  He sought to obtain emergency housing commission accommodation in Melbourne but he eventually decided to move to Sydney with his children because relatives had offered assistance in that city.  Mr El Ayoubi said this did not mean that he had finished his relationship with Ms Akra and that there was an agreement that he would go for a week each month to live with her in Melbourne or she would come for a week to live with him in Sydney.  This arrangement lasted until he discovered that Ms Akra had lodged a complaint against him to DIMA because she had learned from someone in Melbourne that Rabih had lodged an application to sponsor his mother to come to Australia.  Rabih did in fact sponsor his mother to migrate.  This action had come after one of the twins, Sami, had sought to kill himself because he was upset about their separation (transcript 8 December 1999:  24-26).

11. Mr Jones asked Mr El Ayoubi what he would say to the allegation that once he had obtained his permanent residence visa that was the end of his interest in Ms Akra and that he then left her.  Mr El Ayoubi responded in the following way:

    That was not pure bad luck for me because of the circumstances that were at the time.  No, I haven't intended on leaving her because at the time she said when your children would come here I will place them in my heart and if it wasn't that I would not travel from here to Melbourne every week – it is 950 kilometres just to be with her. 
    (transcript 8 December 1999:  27)

12. Mr El Ayoubi denied having ever made any threats against Ms Akra or having knowledge of such threats being made by others.  He also denied having conspired with his first wife, Ms Dib, to come to Australia, pretending to be separated or divorced from her, then obtaining residency through a false marriage and then bringing her out to live with him.  Mr El Ayoubi said that he was now divorced from Ms Akra but that she was still his wife in the eyes of the Islamic religion (transcript 8 December 1999:  27-28).

13. Ms Henderson cross-examined Mr El Ayoubi about the circumstances surrounding the migration of his three sons to Australia.  In particular, Ms Henderson asked Mr El Ayoubi about the statements he had made during the course of an interview with a DIMA official, Mr Patrick Dever, at a recorded interview on 21 December 1998.  During the course of this interview Mr El Ayoubi told Mr Dever the following about the events which had led to his departure for Australia, and his subsequent actions to bring his three children to this country:

    DEVER:               Have you kept in contact with Amira Dibb?
    INTERPRETER:   No.
    DEVER:               You have no contact with her?
    ELAYOUBI:         No.  Just sometimes, how are you.  All right.
    INTERPRETER:   The kids have contact and just say hi, how are you.
    DEVER:               And where does Amira Dibb live?
    INTERPRETER:   She lives in Lebanon … in a house.
    DEVER:               Do you know the actual address that she lives?
    INTERPRETER:   She lives in the same house I left her in.
    DEVER:               Are you aware that she was applying to come to Australia?

    INTERPRETER:   The story is, I came from Lebanon.  I fled Lebanon and I had lots of problems between her and I.  The divorce that took place in 1988 was not normal.  When I came to divorce her she brought the militia and they threatened to kill me or to take everything, my children and everything that I owned.  I went away to Beirut to the Christian area.

    Then people interfered and we have reconciled but I had then made my decision that I wanted to come to Australia and I did lie to the Government, the Australian Government twice.  The first one that I said that I want to go on a tourist visa and I had in my mind, I had every intention to stay.

    The second lie was the fact that I did say that I was married and two weeks ago later I divorced and there is one story that the Government need to believe me.  The most important factor the Government should believe, should know actually, is the fact that my mother, my children, no one knew that I was coming to Australia except my brother who was migrating to Australia and at the airport I had all my luggage packed and kept with my mum and that's when my children found out that I was travelling to Australia.

    Then when I came to Melbourne and I married the lady I applied and they asked me whether I've got children under the age and I said, yes.  I was surprised when I had interview with Robyn Byrne I had been in the country for eight months.  Please, before you make any decision I would like you to read that interview dated 23rd of '94.  It was '94.  When I asked for that document they did not send it to me.  Then I was surprised that they cannot bring my children unless their mum can consents.  Then I was forced and the Lebanese Consul, the Embassy in Beirut they wouldn't give them any application unless she signs or consents.

    I just tricked her and I wanted to play a game with her in order to get those children here because I thought in Lebanon their future is non existent.  One of her conditions to consent for the children was that she remains in the house and also for Rabi [sic] to, when he gets his permanent residence to sponsor her.

    I did not sponsor her.  I cannot live with her.  Even if I talk to her for five minutes on the phone we end up arguing.  According to the Shaliha, the Islamic Shaliha she is not suitable for me unless she gets married first to another man because I have divorced her three times. 

    (MEA T63: 304-305)

14. Mr El Ayoubi said that he remembered making certain statements to Mr Dever.  In relation to the promises that he said he had made to Ms Dib he had the following to say under cross-examination by Ms Henderson:

    THE INTERPRETER:  Well, it wasn't a personal promise from me.  It's well known, everyone knows, that the family reunion in Australian law would allow the children to bring her here.  If I promised or not it would be the same.  The only promise I made is she would stay at home and she would get the money.
    MS HENDERSON:  You knew what the Australian immigration law would permit, is that what you are saying?
    THE INTERPRETER:  There are some things that are generally known, like there they would talk that if the whole family is here, a person might be able to bring their mother or their father.
    MS HENDERSON:  When did you find that out?
    THE INTERPRETER:  It's well known from Lebanon, before I came here.
    MS HENDERSON:  Did you know that if you married an Australian citizen you might be allowed to stay in Australia?
    THE INTERPRETER:  Yes, of course, and I had planned on that and that is the only lie I've made and that's the lie I've been prosecuted for now.  Because I made this one lie everything else I say is not believed.
    MS HENDERSON:  When you were interviewed at Villawood you said you had made two lies.
    THE INTERPRETER:  That's the lie about the visa and the lie about the residency but they are connected.
    MS HENDERSON:  You are prepared to tell lies to get what you want, aren't you?
    THE INTERPRETER:  In my whole life I never lied.  I hate lying and I'm very affected by the wording of bad character because of those two lies I made.  If they accuse me of killing someone it would be easier on me than saying I'm a bad character person because I'm not.
    MS HENDERSON:  You knew when you left Lebanon that you intended to stay in Australia for ever, didn't you?
    THE INTERPRETER:  Yes.
    MS HENDERSON:  So you lied and said you were just coming here as a visitor for a few months?
    THE INTERPRETER:  Yes.
    MS HENDERSON:  You knew when you came here that if you found an Australian citizen to marry you you could stay in Australia, didn't you?
    THE INTERPRETER:  Yes.
    MS HENDERSON:  That is what you did, didn't you?
    THE INTERPRETER:  Yes.
    MS HENDERSON:  As soon as you got permanent residency you left that Australian citizen, didn't you?
    THE INTERPRETER:  No.  I left her because of special circumstances because of my bad luck but if you want – I mean, you have the right to believe that I did that on purpose but it wasn't my purpose.
    (transcript 8 December 1999:  45-47)

15. It should be noted at this stage that the Tribunal did have certain documentary evidence before it regarding the assessment that was made of Mr El Ayoubi's marital status at the time he applied for permanent residence status in Australia, following his marriage to Ms Akra.  The assessment made it clear that at the time of reviewing Mr El Ayoubi's immigration history particular attention was paid to the divorce certificate he obtained dated 15 December 1992.  The assessment noted, in part:

    Mr El Ayoubi entered Australia on 7/1/1993 visitor Class 673 and was granted a tep until 7/4/1993 and a further tep until 7/7/1993.
     On the 20/5/1993 he applied for an EETEP/PEPAE on marriage grounds sponsored by Mrs Khnom AKRA (now Mrs EL Ayoubi), an Australian citizen. Mr El Ayoubi stated that he married Ms AKRA in Australia on 16/5/1993.
    Mr El Ayoubi stated that he had been previously married to Ms Amira DIB and had divorced her on 15/12/1992. It was important to determine if the applicant was subject to Section 20 as he had stated on his visa application that he was married. The form 48 declared that the applicant was married at the time of application for his visitor visa that was lodged on 10/11/1992. His divorce certificate indicated that he obtained the divorce on 15/12/1992. In these circumstances applicant did not appear to be subject to Section 20 however, the bona fides of the marriage then came into question.
    I interviewed the couple separately on the 22/3/1994. The applicant married Ms AKRA 4 months after his arrival in Australia. She is 45 years old and has been married twice before and has 4 children. She is from a Lebanese background and speaks Arabic. The applicant is 48 years old and has 3 children who he wants to bring to Australia.
    Applicant and spouse stated that they knew each other for about 2 weeks before they decided to marry. Ms AKRA justified saying that this is her custom and not to have a boyfriend/girlfriend relationship. I interviewed the couple separately. They were vague about the details of lodging the NOIM however, the details of daily life, her children's schooling, details of the house at 22 Gilmorue Street, and details of rent. 
    (MEA T9:86)

16. The officer making this assessment, dated 9 September 1994, was Ms Robyn Byrne of DIMA's Resident Status Section.  Ms Byrne concluded, on the basis of the information presented by both Mr El Ayoubi and Ms Akra, that "their relationship appears genuine and continuing.  However, I suggest that case be closely examined prior to issue of PEPAE" (MEA T9:87).

17. A neighbour of Mr Mahmoud El Ayoubi during the time he was residing in Melbourne, Mr Dagher Dagher, also gave personal testimony to the Tribunal about Mr El Ayoubi's relationship with Ms Akra.  Mr Dagher said that he had first met Mr El Ayoubi in 1993 when Mr El Ayoubi came to live in his street.  He had visited the El Ayoubi home frequently and felt that it was a normal household.  However, problems had arisen when Mr El Ayoubi's sons arrived from Lebanon because the house was too small to accommodate all of its occupants (see in general transcript 8 December 1999:  56-64).

18. Mr Dagher said that he recalled Mr El Ayoubi moving to Sydney in about 1996.  He had visited Mr El Ayoubi in Sydney on more than ten occasions.  He also saw Ms Akra in Sydney with Mr El Ayoubi on five occasions.  Mr El Ayoubi had gone to Melbourne on a number of visits after moving to Sydney.  When in Melbourne Mr Dagher believed he stayed with Ms Akra (transcript 8 December 1999:  64-66).
    Application to Migrate by Ms Dib:  November 1995

19. Ms Dib gave her testimony to the Tribunal by means of a phone link up with her current home in Tripoli, Lebanon.  Ms Dib said she had been very surprised to learn that her husband had left for Australia in January 1993.  At the time their marriage was "all in appearances" and there was nothing to keep them together other than the children.  Ms Dib said she discovered that her brother-in-law was supposed to divorce her on her husband's behalf and in fact he did so and gave her $1,000.  She had not seen any of the divorce documents which remained in the hands of her brother-in-law  (transcript 8 December 1999:  79-80).

20. In regard to her three sons Ms Dib said that she had given her permission for them to come to Australia to be with their father.  She had given this permission because she could not support them financially.  She had received some support from Mr El Ayoubi through the provision of portion of a pension which was paid to her by his brother.  Ms Dib said that she had wanted her eldest son, Rabih, to apply on her behalf to migrate to Australia.  He had in fact done so in November 1995 and it had been her intention to go to live with him and her other children.  She wished to have no contact with her husband.  Ms Dib said that she understood that she was divorced from Mr El Ayoubi.  She had been divorced six or seven years ago.  She had also gone with her brother-in-law to a court where she had been divorced.  She denied having provided any documents about this divorce to the Australian Embassy at the time of her sponsorship for migration to Australia by her son Rabih (see in general transcript 8 December 1999:  80-84).

1. Ms Dib said that she had been interviewed at the Australian Embassy by a Mr Petyanszki.  During the course of this interview Ms Dib said she had been shown a document with a stamp on it and Mr Petyanszki has said that this was a divorce paper and that the stamp was a false one.  Ms Dib said she had never seen the document before.  Ms Dib also said that she had been accused by Mr Petyanszki of acting in collusion with her husband.  She denied this accusation (transcript 8 December 1999:  86-87).

2. Cross-examined by Ms Henderson, Ms Dib said that she had not been promised anything by Mr El Ayoubi in return for allowing her sons to go to Australia.  It had been Rabih's idea to sponsor her to come to this country.  She had given Rabih the name and address of a migration agent to whom he would send the application forms in Lebanon.  The agent, Mr Joseph Jokadar, had told her what to say to Mr Petyanszki at the interview that she had with him in Beirut.  Ms Dib acknowledged that Mr Petyanszki had shown her a document.  However, Ms Dib denied that she had said that she had obtained that document from the Ministry.  The application had been with Mr Jokadar and he was the person who was doing everything.  She had signed the application but had not obtained any of the accompanying papers including the divorce certificate.  She said that she had been tricked by Mr Jokadar, who had also lied to her and assaulted her physically.  She did not know how Mr Jokadar had obtained the divorce document.  She had not told Mr Petyanszki that Mr Jokadar had obtained this document because she had been following instructions from him as to what she should say at the interview (transcript 9 December 1999:  154-156).

3. Mr Rabih El Ayoubi, in his personal testimony to the Tribunal described the difficulties that he had experienced on his arrival in Australia when he was living with his father and his new wife, Ms Akra, and her four children.  He said that the situation eventually became so bad that his father had decided to move to Sydney where the family had a lot of relatives who were all financially comfortable and able to give a lot of help.  Despite the move, Mr Rabih El Ayoubi said that his father had kept in contact with Ms Akra (transcript 9 December 1999:  96-102).

4. Mr Rabih El Ayoubi said that he sponsored his mother to come to Australia at about the end of 1995 or the beginning of 1996.  This was shortly after he had obtained permanent residency in Australia and he was around 18 or 19 years of age.  His parents had not been getting on well together for many years and he understood that at the time of sponsoring his mother they were divorced.  He did not say anything to his father about the sponsorship application because he would not have agreed with it being made.  He did eventually tell his father after his brother, Sami, had attempted suicide because of his depression about being separated from his mother (see in general transcript 9 December 1999:  104-106).

5. Mr Rabih El Ayoubi said that he had completed the application forms himself and had sent them to an agent in Lebanon, Joseph Jokadar, whose name had been provided to him by his mother.  Mr Rabih El Ayoubi said that Mr Jokadar had asked him to obtain an identification form and a divorce certificate for his mother.  He had gone through his father's filing case at home and found the divorce certificate and sent it to Mr Jokadar.  He had not asked his father for the certificate but had simply taken it from his files (transcript 9 December 1999:  107-108).

6. Cross-examined by Ms Henderson, Mr Rabih El Ayoubi confirmed that he had arrived in Australia on 16 April 1995.  He had subsequently taken an intensive course in English but had already studied this language while in Lebanon.  The sponsorship form that he had prepared for his mother was completed in September 1995.  Mr El Ayoubi then said that he had not filled it in personally but it had been completed by the agent Mr Joseph Jokadar.  Mr El Ayoubi said that he could not recall whether he had mentioned any assistance being provided by Mr Jokadar in the section of the application form requiring acknowledgment of any such assistance (transcript 9 December 1999: 112).  Mr Jokadar had obtained the form for Mr El Ayoubi and had submitted the form.

7. Ms Henderson then put it to Mr Rabih El Ayoubi that he had to sign the form and that he had not gone to Lebanon to fulfil this task.  Mr El Ayoubi then said that he had not gone to Lebanon but went to an immigration office in Sydney to "get the application going" but he still could not recall whether he had filled in the application or not.  Ms Henderson then took Mr El Ayoubi to MEA T24 which was an application form for migration to Australia for Ms Dib.  Mr Rabih El Ayoubi then acknowledged that the writing on this form was his own.  He further acknowledged that he had described his father as his mother's spouse on the application form (transcript 9 December 1999:  115;  MEA T24: 162).

8. Some confusion then arose about the documents being reviewed by Mr Rabih El Ayoubi.  It was agreed by the parties that certain pages were missing from the MEA T set of documents relating to the application for migration filed on behalf of Ms Dib.  Attention was then turned to REA T25 which was a further and complete copy of the application form.  It was then determined that Mr Rabih El Ayoubi had not completed the pages in the application numbered REA T25:181-185.  However, at REA T25:186 Mr Rabih El Ayoubi's signature appeared as the name of the person assisting the applicant.  The date shown against the signature was 21 September 1995.  Ms Henderson then suggested that contrary to the evidence that had just been given by Mr El Ayoubi, he must have gone to an immigration office and obtained a form.  Mr El Ayoubi continued to say that he could not remember what he had done (transcript 9 December 1999:  120).

9. Ms Henderson also asked Mr Rabhi El Ayoubi who had made first contact with Mr Jokadar.  Mr El Ayoubi said that his mother had, and that this had been prior to the completion of the application form.  He could not recall whether his mother had told him anything about Australian immigration law which she had learned from Mr Jokadar.

10. The sole witness called on behalf of the respondent to provide personal testimony to the Tribunal was Mr Joseph Petyanszki.  As already noted Mr Petyanszki was the Minister's delegate who refused Ms Dib's visa application for the reasons that have been set out above (see paragraphs 14-15 above).  Mr Petyanszki also conducted an interview with Ms Dib at the Australian Embassy in Beirut in October 1997 (REA T54:  265-267).  This interview followed the discovery by Mr Petyanszki that the divorce certificate lodged with Ms Dib's application to migrate to Australia was a forgery.  This discovery had come about as a result of a personal visit by Mr Petyanszki to the Director for the Personal Civil Registry Department of the Ministry of Interior in Tripoli.  The Director had determined that the certificate had not been issued by his office and that the official stamps on the certificate were not genuine.  Mr Petyanszki's notes of his interview with Ms Dib included the following:

    - Asked to examine certificate from Ministry of Interior concerning her particulars and asked if it was her document: said yes it was her document.
    - Asked who obtained this document from the Ministry: said she obtained it personally.
    - Asked when she was married and divorced: said she could not recall what year she was married in, but was divorced on 221292.
    - Asked to examine dates provided by Interior Ministry for marriages and divorces. PA became quite agitated and said yes they were correct, however the … she was divorced in 221292.

    - Asked to comment on date given in certificate 160494: said the date was wrong and pPointed [sic] to stamp indicating 221292 at the top of page.
    - PA asked to examine date in certificate and dates provided at back by Min of Int: Said they were wrong !!
    - Put to her they were taken from the official records held at the Ministry: PA said she does not care she only wants to join her children in Australia, this had nothing to do with her.
    - PA asked again where she got the document: said she obtained it herself.
    - Put to her we have been advised by the Ministry for the Interior that it was not issued by them, and that the stamps on the document were forgeries, the details have been eneterd [sic] onto a photocopied page of the genuine certificate. PA was becoming more agitated and loud. Kept repeating she knows nothing about this.
    -Put to her given she states she personally obtained this document it has everything to do with her. Said she knows nothing about the document.
    - Put to PA she has repeatedly informed me she personally obtained this document: said yes but she knows nothing about it.
    - PA again asked where she got the document: said she did not know.
    - Put to PA that her spouse and she have conspired to deceive Australian Immigration by contrived marriages and divorces. PA said no this is not true, she hates her previous spouse and will never live with him. Said he treated her and the children very badly.
    - If this was the case, PA asked why she agreed to send her children to A/a to be with him: PA said she could not afford to give the children a good life so she sent them to A/a. She added that she will look after them and privide [sic] for them in A/a.
    - PA asked how will she do this in A/a when she cannot do it in Lebanon: PA responded that Australia was very different, the Australian government will give her a house, will also give her money to live on, she will also get special mon… for the her [sic] children, she said it is called social security !!
    - PA asked why would the Australian Gov. finance her and her children's life: Said she & children have decided that they wish to live in Australia, Australia accepted her children now must accept her.
    - Allegations at 4, 7, 14 put to PA. Sai [sic] she had a lot of enemies. Then demanded to know when the visa will be issued. PA informed that based on the info before me I will recommend that the application be refused.
    - PA became very upset and continually yelled that we had no right to keep her from her family. She said that she sent her children to A/a with the knowledge she will join them later.
    - Put to her it was her choice to send the children to A/a. PA continued to yell that it was agreed she would follow the children to Australia.
    - Asked PA 'who agreed': PA continued to yell that this was the way her family could have a better life. we [sic] had no right to separate the children from their mother.
    - PA again asked to explain where and how she obtian [sic] the fake Minsitry [sic] of Interior doc. Said she knows nothing about this. Demanded a v/v to go to A/a and sort this out with her spouse as it was agreed she would follow the children.
    - Informed PA she will not be granted a v/v. Advised she should talk to her spouse. Said she will go to A/a and sort it out with him as she & her family wish to live together in A/a. Again advised she would not be granted a v/v. … said she will talk with her ex-spouse and re apply [sic] as we have no right to keep her away from her family.
    COMMENT:
    PA has clearly lodged a fake document. It would seem PA's ex husband gained residence in A/a as a spouse in 1993. According to the Ministry of Interior records in 1993 he was still legally married to PA, they did not get divorced until 160494. Therefore Al Ayoubi's residence in A/a was based on a bigamous marriage. Hence the reason in providing a forged divorce certificate with the date 221292 stamped at the top of the page is an atempt [sic] to mislead this office into thinking this was the date of divorce.
    PA was most unconvincing in her story of her troubled marriage to previous spouse. She presented contradictory, misleading and false information regarding former spouses [sic] current marital status and residence. She admitted the family had worked out how they can be together in A/a where they can live on Social Security.

    It would seem the allegation put this [sic] office by the current spouse of former husband is accurate. 
    (REA T54: 266-267)

11. In his testimony before the Tribunal Mr Petyanszki said that he recalled his interview with Ms Dib.  Under cross-examination by Mr Jones he acknowledged that he also knew of Joseph Jokadar.  Mr Petyanszki said that:

    Joseph Jokadar is a travel agent who lives in Tripoli and he has a long history of bringing clients to our office.  Mr Jokadar was banned from entering the Australian Embassy in late 1997 or early 1998 because he was involved in forging Australian visas and transposing visas and selling them, we understand, to different people and he was reported to the Internal Security Forces of Lebanon.  He also has a long criminal history within Lebanon and with the Internal Security Forces – his involvement in narcotic matters.
    (transcript 9 December 1999:  164)

12. Mr Jones queried Mr Petyanszki at some length about the way in which he had prepared the notes of his interview with Ms Dib.  Mr Petyanszki said that he took handwritten notes of each of the interviews that he conducted and then transcribed these notes as soon as possible onto the DIMA IRIS system.  After this he shredded his handwritten notes.  Mr Petyanszki said it was not the ideal way of proceeding but that the circumstances did not allow direct input of the information into the computer, nor in this particular case had it been possible to prepare a record of interview and then ask Ms Dib to sign it.  This was because she had stormed out of the interview prior to its completion.  Mr Petyanszki admitted that he had not recorded the fact that Ms Dib had terminated the interview in this way (see in general transcript 9 December 1999:  164-170).

13. The Tribunal asked Mr Petyanszki why he had not recorded the interview with Ms Dib on tape.  Mr Petyanszki said that attempts had been made in a number of cases to do this but very few people liked to be recorded in this way.  In Lebanon it had also been found that clients felt extremely nervous about this because it reminded them of being interviewed by the secret police.  It was also found that women clients were particularly sensitive about being tape recorded in this way (transcript 9 December 1999:  178-179).

14. The Tribunal also asked Mr Petyanszki to describe in more detail how he had  checked the authenticity of the divorce certificate that had been submitted by Ms Dib.  Mr Petyanszki said that he had gone in person to the Civil Registry Record Section and had inspected the documents that were maintained at that location.  The Director of the Registry had shown him the book where Mr El Ayoubi's marriages and divorces were officially recorded against his name.  He had written the dates of these marriages and divorces on the document which had been lodged by Ms Dib and had also placed a genuine stamp on the back of the certificate to show what it should look like.  Mr Petyanszki said that initially Ms Dib had said that she was the person who had obtained the document that was proved to be a forgery.  She had then changed her mind and said she had not personally obtained the document and knew nothing about it (see in general transcript 9 December 1999:  180-182).

15. The respondent indicated that it had also intended to call Ms Kahnoum Akra as a witness before the Tribunal but had been unable to locate her.  The documentary evidence before the Tribunal included a compliance inquiry form, completed on 10 February 1997, which it was not disputed had been completed by Ms Akra (MEA T41:214-215).  In this document Ms Akra claimed that her husband had left her only one month after his grant of permanent residence and was now bringing his ex-wife to Australia under the sponsorship of his eldest son.  Ms Akra stated that:

    I am seeking justice to be done.  This man has lied to me throughout our marriage so that he could obtain his permanent visa.  I have informed the Australian Embassy in Beirut about this matter.
    My ex-husband's name is Mahmoud El Ayoubi DOB 17/11/46.  The mother of his children - Details are Amira Dib El Ayoub, DOB: approx 40 yrs old.
    I am requesting that the Department of Immigration cancel his visa and should [sic] returned to Lebanon. 
    (MEA T41: 214-215;  see also MEA T42 and T43)

CONSIDERATION

1. Section 501 of the Act requires the consideration of two distinct issues by the Tribunal in regard to each of the applications under review.  The first of these is whether the Tribunal is satisfied that Mr Mahmoud El Ayoubi, and Ms Dib, having regard to their general conduct, are not of good character.  The second issue, which is only required to be answered if the first is resolved unfavourably for either applicant, is whether in the circumstances the Tribunal should still grant them the visas they seek, despite an adverse finding as to character.
   Good Character Issue
   Submissions

2. In his submissions made on behalf of the applicants Mr Jones said that the essence of the respondent's case was that a conspiracy had been entered into between Mr Mahmoud El Ayoubi and Ms Amira Dib or perhaps even with other people, to fake the break up of their marriage or their marital relationship and then to allow Mr El Ayoubi to go to Australia to enter into another fake relationship with another person.  This would allow him and his sons to obtain permanent residence in this country and, ultimately, to bring Ms Dib to Australia as well.  Unless the Tribunal was satisfied that both of the relationships or both of these things were contrived, then the whole conspiracy theory would fall apart.  It would also be possible, however, for the Tribunal to find that Ms Dib had not been involved in any conspiracy but that Mr El Ayoubi had entered into a fake relationship in Australia for his own purposes.

3. In relation to the allegation of conspiracy Mr Jones contended that the evidence before the Tribunal fell into four categories – first, the Lebanese divorce document which had been demonstrated to be a fake;  second, the allegations made by Ms Akra in relation to Mr Mahmoud El Ayoubi and her relationship with him;  third, the circumstances surrounding the timing of the move from Melbourne to Sydney of Mr El Ayoubi and his three sons;  and fourth, the evidence about Ms Dib's behaviour and statements in her dealings with the Australian Embassy in Beirut.

4. In relation to the divorce, Mr Jones submitted the Tribunal should accept the evidence that Mr El Ayoubi was married to a person who was associated with a powerful faction in Lebanon who could make his life very difficult.  He had sought to terminate that relationship and to leave the country.  He had also obtained what he believed to be a divorce without telling his wife, at least until after he had departed for Australia.  At a later stage he had then sought to have documentation issued that would regularise the divorce.  This documentation did not meet Australian standards for a legal divorce but the fact that it was done in a sloppy and difficult way was not sufficient to establish that a conspiracy existed.  It was admitted that the divorce certificate was "not correct on its face".  It was also conceded that it did not constitute a legal divorce for the purposes of Australian law, and that it had a flow on effect to the legality of Mr El Ayoubi's marriage to Ms Kahnoum Akra in Australia.

5. In regard to the second category of evidence, Mr Jones contended that while it did appear that certain allegations had been made by Ms Akra about the nature of her relationship with Mr Mahmoud El Ayoubi these allegations were not brought to the attention of DIMA until February 1997 at a time when the couple had ceased living together on a permanent basis for about 18 months.   The question had to be raised why Ms Akra had not come forward with these accusations at an earlier time.  Ms Akra was also not in an objective situation.  She might be excused for drawing a conclusion that there was a conspiracy but there was nothing but circumstantial evidence to support this view and there was nothing from her evidence, or any other source, to suggest that during the time that she was living with Mr El Ayoubi she thought the relationship was not a genuine one.

1. It was not until DIMA officials suspected that something was seriously wrong with this divorce certificate, and Mr Petyanszki took it to the Director for the Personal Civil Registry, Department of the Ministry of Interior in Tripoli in October 1997, that it was determined that it was indeed a fake.  In the interim this document had been used by Mr Mahmoud El Ayoubi to substantiate his claim for permanent residency based on his purported marriage to Ms Akra (see paragraphs 41 and 42 above).  There had also been an attempt to use the same bogus divorce certificate in order to substantiate the documentation required for Ms Dib's migration to this country under the sponsorship of her son Rabih.  It was this latter use of the document which led to the eventual unravelling of the deception engaged in by Mr Mahmoud El Ayoubi, as well as implicating in that deception Ms Dib, Mr Rabih El Ayoubi, and also an agent in Lebanon with a most dubious record of conduct.

2. What Mr Petyanszki did discover when he went to the Registry in Tripoli was that not only was the divorce certificate of 22 December 1992 a fake, but that Mr Mahmoud El Ayoubi and Ms Dib had been divorced for the first time on 6 September 1988.  The official registration number for this divorce certificate at the Registry was the same as that which appeared on the bogus certificate supposed to have been issued in December 1992.  The official date of Mr Mahmoud El Ayoubi's remarriage, according to the Registry documents obtained by Mr Petyanszki, was 15 December 1988.

3. Mr Mahmoud El Ayoubi, from actions like these as well as his acknowledged lies, was in the Tribunal's view a most unreliable and untruthful witness.  The Tribunal has serious doubts about whether he ever did seek to divorce Ms Dib on 15 December 1992, and even if he did, it was almost certainly for the cynical purpose of suggesting that he believed that he was free to marry again should the opportunity arise once he got to Australia.  No evidence was produced, for example, from the sheik or the two witnesses who were supposed to have been present at this divorce.  Indeed, the only other evidence regarding the specifics of this divorce would seem to be a statement produced by Ms Dib in February 1998 (MEA T53:  261) in which she said:

   I the undersigned, Amira Dib of ElMina Tripoli El Mishti Street hereby freely and voluntarily declare that I know very well that my previous Husband Mahmoud El Mir El Ayoubi divorced me a final divorce on 15. 12. 1992. I came to know of that divorce few days after he left to Australia at the beginning of January 1993. I considered my self finally a divorced wife since that date. I also declare that Mahmoud El Ayoubi previously divorced me in the year 1988 and in order to reconcile we were forced to conclude a new contract of marriage as it was against the Sharia belief that we reconcile without that new contract of marriage.
   Since 15. 12. 1992 I considered my self divorced finally from my Husband Mahmoud El Mir El Ayoubi and that there is no marital relation of whatsoever nature is existing between us.
   My son Rabih informed me that the Department of Immigration in Australia considered that my divorce from my husband on 15. 12. 1992 is a bogus divorce for it did not carry correct registration numbers. This allegation is not correct and completely wrong. My divorce to my said husband was a valid one expressed by my husband under the Islamic belief and which was concluded by his own sole will. And therefore I consider myself divorced since 15.12. 1992.
   (MEA T53:261)

4. Even if Mr Mahmoud El Ayoubi did go through this secretive divorce, it did not in any way mitigate his behaviour in utilising the false divorce certificate to justify to DIMA officials his bona fides, and his satisfaction of what was then s 20 of the Act.  Without the certificate Mr Mahmoud El Ayoubi would not have been able to have secured permanent residency, following his purported marriage to Ms Akra which was, in fact, a nullity and bigamous.  The Tribunal is also satisfied that Mr Mahmoud El Ayoubi was sufficiently knowledgeable of both Lebanese and Australian law to recognise this situation, and also to be aware that more than his own word would be required to satisfy Australian immigration officials that he was in fact free to marry Ms Akra in this country.

5. In regard to his relationship with Ms Akra, it may have been that Mr Mahmoud El Ayoubi's intentions were multifarious and that in addition to viewing her as a vehicle to secure his permanent residency he also sought other benefits from the relationship.  However, given the stated views about Mr Mahmoud El Ayoubi's overall credibility as a witness, the Tribunal also finds implausible his explanation that it was purely circumstantial that he left the relationship with Ms Akra shortly after gaining permanent residence to move to Sydney with his three sons.  Mr Mahmoud El Ayoubi suggested that he had sought to maintain the relationship and had visited Melbourne on a number of occasions, as well as Ms Akra visiting Sydney.  Mr Dagher, a witness called on behalf of the applicant, did describe how he had witnessed both Mr El Ayoubi and Ms Akra together over a period of time in Melbourne and in Sydney.  However, these interactions do not seem to have been substantial or long lasting, and there is every reason to believe that Ms Akra was in fact one of a number of people duped by Mr Mahmoud El Ayoubi in the course of fulfilling his longer term ambitions to remain in this country with the rest of his family members.

6. Overall, the Tribunal is positively satisfied that through his actions and behaviour throughout the time that he has been in this country, as well as in the period prior to leaving Lebanon, Mr Mahmoud El Ayoubi has demonstrated few if any of the enduring moral qualities that are associated with a person of good character (see in general Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422). Thus, the Tribunal concludes that having regard to Mr El Ayoubi's general conduct it is satisfied that he is not of good character.
   Tribunal's Views:  Ms Amira Dib

7. The circumstances surrounding Ms Dib's application to migrate to Australia, as well as her associated personal testimony to the Tribunal, have been set out in some detail.  The Tribunal found Ms Dib's testimony to be contradictory, evasive and in general, unreliable.  She denied being in collusion with her husband in any way and also denied having seen the bogus divorce certificate which was shown to her by Mr Petyanszki at the interview in October 1997.  Ms Dib did acknowledge that she had followed instructions from Mr Jokadar about what to say at this interview.

8. As noted earlier, Mr Petyanszki gave personal testimony to the Tribunal about what had taken place at the interview and also about the record that he had made of the proceedings.  The Tribunal does not accept the submissions made on behalf of the applicant that it should place little weight upon the accuracy or reliability of these notes made by Mr Petyanszki.  Mr Petyanszki was, in the Tribunal's view, a highly credible and convincing witness.  During the course of his cross-examination of Mr Petyanszki, Mr Jones quizzed him at some length about his experience as an investigator.  Through his responses to Mr Jones' questions Mr Petyanszki demonstrated that he had significant experience in investigating immigration fraud and malpractice in a range of posts in different parts of the world.  He also explained in a frank and believable manner the reasons why it had not been possible to make a contemporaneous record of the interview, or to present Ms Dib with a record of that meeting which she could either acknowledge or reject.  Relevant portions of the interview notes have been set out earlier in this decision and they indicate that in her responses made to Mr Petyanszki's questions, Ms Dib failed to maintain a consistent position on her knowledge of the bogus qualities of the divorce certificate, and also on her involvement in obtaining it in the first place.  She then sought to shift all of the blame for any misleading or related conduct upon her agent, Mr Jokadar.

9. Ms Dib's explanations of her reasons for allowing her three children to come to Australia were also unconvincing.  The Tribunal is satisfied on the evidence that was presented on this issue that she did have some form of agreement with Mr Mahmoud El Ayoubi about being brought to Australia after the departure of her three children to this country.  Mention of such an agreement was contained in Mr Petyanszki's interview notes.  Mr Mahmoud El Ayoubi denied any such agreement but his eldest son, Rabih, undoubtedly facilitated the application made by his mother to migrate to this country at a time when he was also residing with Mr Mahmoud El Ayoubi and his brothers in Sydney.  The Tribunal found Mr Rabih El Ayoubi to also be an evasive and unimpressive witness who only acknowledged under cross-examination by Ms Henderson that he played a quite significant role in the actual preparation of the application.  It was also Mr Rabih El Ayoubi who obtained the bogus divorce certificate and sent it to Lebanon to be included with the documentation for Ms Dib's application.  It is difficult to believe that he was not also aware of its lack of authenticity.

10. On the basis of her own conduct and actions which have been described, the Tribunal is also positively satisfied that Ms Dib is not a person of good character.
    Refusal Issue

11. Having reached these conclusions about both applicants the Tribunal is now required to consider the second issue which arises under s 501, namely, whether notwithstanding a finding that both Mr Mahmoud El Ayoubi and Ms Dib are not persons of good character, the power to cancel a visa in Mr Mahmoud El Ayoubi's case, or the power to refuse to grant a visa in Ms Dib's case, should not be exercised in the circumstances.  It should be noted that Mr Jones made no submissions to the Tribunal in regard to the way in which it should exercise this discretion.  However, Ms Henderson did refer in her submissions to this refusal issue.  She contended that in regard to Ms Dib's application the fact that her son Rabih El Ayoubi's conduct had facilitated the deception and deceit involved was such that it tainted any suggestion that his desires ought to be taken into account in allowing his mother now to migrate to this country.  Ms Henderson also said that the applicant had made a conscious decision at the hearing not to call any evidence from the other two sons, Sami and Samer, who were no longer children under law and therefore did not attract any consideration of what was in their best interests within the framework of Australia's international obligations under the UN Convention on the Rights of the Child.  This was in marked contrast to the earlier proceedings before the IRT where their particular status and claimed vulnerability had been viewed as a matter of great importance.

12. Ms Henderson said that the psychiatric evidence which was contained among the documentary material before the Tribunal was extremely dated and no attempt had been made to show any contemporary problems suffered by either of these young adults.  Both seemed to be doing well in Australian society and both were now Australian citizens, as was Rabih, their brother.  Rabih himself had done very well in his business activities and his financial status was such that he was able to visit his mother and re-establish contact with her overseas.

13. The MSI provides the following guidance on the approach that should be adopted by the Tribunal when exercising its discretion under s 501:

    In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:

• The circumstances of the person at the time of the application.  These include but are not limited to:

  ·genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;

  ·the best interests of any child associated with the visa applicant/s;

  ·the strength of family, social, business and other ties to the Australian community;

  ·periods of previous lawful residence;

  ·the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);

  ·family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of International obligations under the Refugee Convention (see s 8).

• whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and

• whether undue harm would be likely to result to the Australian community if the visa was granted.  This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia.  This is a primary consideration, equal in weight to any other primary consideration.

  The above list of matters is not exhaustive.

Mr Mahmoud El Ayoubi

1. Having regard to the factors referred to in the MSI, as well as to all of the evidence which has been provided to the Tribunal, it is clear that Mr El Ayoubi is no longer maintaining any form of spousal or de facto relationship with Ms Akra.  The Tribunal has already expressed its views, which do not require repeating here, about the nature of that relationship (see paragraph 88 above).  In regard to Mr Mahmoud El Ayoubi's three children, all have now attained their formal age of majority and therefore they do not, as Ms Henderson stated in her submissions, any longer fall within the provisions of the UN Convention on the Rights of the Child.  However, there is no doubt that Mr El Ayoubi has continued to maintain close contact with his three sons and has sought to promote their best interests, as well as his own, throughout the time that he has been in this country.  Each of the children would seem to have settled quite readily into their new environment, including becoming Australian citizens.  As such, each son has now achieved the full form of lawful residency that Mr Mahmoud El Ayoubi also sought for himself in this country.  There is no doubt that both Mr Mahmoud El Ayhoubi and his three sons would experience a degree of hardship if they were to be separated by his enforced return to Lebanon.  Nonetheless, Mr Mahmoud El Ayoubi has spent the majority of his life in his country of birth and he retains close ties to and affinities with Lebanon and its culture.  He should therefore not suffer unduly if required to resume his residency in Lebanon even if he does not choose to have anything to do with his former wife, Ms Dib.

2. To be weighed against these factors, some of which mitigate in favour of Mr Mahmoud El Ayoubi being permitted to remain in Australia, is the consideration of any harm that would be likely to result to the Australian community if his visa was not to be cancelled.  While the risk of Mr Mahmoud El Ayoubi committing further immigration fraud may now be low since he has, in essence, achieved most of the objectives which the Tribunal believes he set for himself prior to departing for Australia in January 1993, Mr Mahmoud El Ayoubi's general lack of respect for Australian law gives little confidence that, should appropriate opportunities arise in the future, he will not commit further acts of deceit and deception.  Apart from the possibility of this type of further harm being caused to the Australian community, there is also a need to protect that community against the possibility of other unscrupulous and dishonest persons seeking to emulate Mr Mahmoud El Ayoubi's behaviour in order to gain unlawful residency in Australia.  To allow Mr Mahmoud El Ayoubi to remain in Australia following his cynical and calculated misconduct would send quite the wrong message to people like him who may be contemplating using similar methods to circumvent Australia's legitimate immigration program.  The proper message to be given to such persons must be that those detected and proven to have engaged in immigration fraud should anticipate gaining no benefits from their wrongdoing, and swift expulsion from Australia.  In the Tribunal's opinion, these factors strongly outweigh those which might justify Mr Mahmoud El Ayoubi further extending his residency in Australia.
   Ms Amira Dib

3. In regard to Ms Dib there would seem to be no dispute that after a series of marriages and divorces to Mr Mahmoud El Ayoubi she is at the present time legally divorced from her former spouse in a way which is mutually recognised by both Lebanese and Australian family law.  Further, if she is to be believed on this point, she also no longer has any genuine de facto relationship with her former spouse.

4. Ms Dib has expressed a desire to be reunited with her three children in Australia, even though she has lived separately and apart from them for a number of years.  However, as mentioned earlier, these children are now all of adult age and each would seem to have adjusted to life in Australia without the presence of their mother.  In particular, the types of dilemmas and difficulties explored in the course of the IRT hearing in regard to the children would appear to have been resolved in a favourable manner.  To maintain the physical separation of the three children from their mother by not permitting her to gain entry to Australia would impose some hardship upon each of the family members involved.  The evidence also suggests, however, that Mr Rabih El Ayoubi's financial situation is sufficiently favourable to ensure that each of the children would in the future be able to visit their mother in Lebanon, or at another suitable location.

5. As in the case of considering the exercise of the discretion in regard to Mr Mahmoud El Ayoubi,  the Tribunal must weigh the factors which might lead to the exercise of the discretion in favour of Ms Dib against those factors which would not, including as a primary consideration whether undue harm would be likely to result to the Australian community if her visa were to be granted.  The Tribunal is of the opinion that undue harm would be likely to result if, following the pattern of conduct which has been described in relation to the application that she made to come to this country, sponsored by her son Rabih, a favourable outcome was ultimately reached.  Ms Dib, like her former husband, would appear to have little respect for established laws and procedures including those relating to immigration.  She seemed keen to contemplate a new life in Australia in the bosom of her family living on the benefits of social security.  To now succeed in such an ambition would plainly send an incorrect message to those who seek to follow the established procedures for gaining entry into Australia as migrants, as well as encouraging further deception and deceit by less scrupulous potential migrants.
   CONCLUSION

6. For the reasons which have been set out above, the Tribunal reaches the conclusion that there are on balance insufficient reasons to justify the exercise of its discretion not to cancel Mr Mahmoud El Ayoubi's visa to remain in Australia, or to grant the visa sought by Ms Amira Dib to enter Australia.  The decisions under review are thus affirmed.

   I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell

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

   Date/s of Hearing  8, 9 and 10 December 1999
   Date of Decision  10 March 2000
   Solicitor for Applicant  Mr Michael Jones
   Counsel for Respondent  Ms Rhonda Henderson
   Representative for Respondent  Ms Juliet Carrington