El Weddy and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1165
•8 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1165
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/186
GENERAL ADMINISTRATIVE DIVISION ) Re
Claudine El Weddy
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date8 November 2004
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the respondent for reconsideration with a direction that the visa application not be refused under s 501 of the Migration Act 1958.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 spouse (permanent) visa – character test – refusal of visa on the ground the visa applicant fails the character test – past and present general conduct – examination of the visa applicant’s arrival and stay in Australia – examination of the visa applicant’s working unlawfully in Australia – examination of the visa applicant’s personal circumstances – discretion that the tribunal may exercise where the visa applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant – found that the visa applicant did not make false representations about leaving Lebanon because he feared for his life – found that it is likely that the assertions made on the visa applicant’s protection visa application were inserted by his then migration agent without his knowledge or approval – found that the RRT did not send correspondence direct to the visa applicant at his address which it had on record – found that the visa applicant did not make active enquiries to ascertain the result of his RRT hearing and status in Australia and that he remained in Australia unlawfully and worked without permission – found that the visa applicant’s general conduct did show an intent to comply with immigration laws despite failing to make prompt and active inquires with the RRT – held that there is not sufficient evidence upon which to base a finding that the visa applicant is not of good character – the decision under review is set aside and remitted to the respondent with a direction that the visa application not be refused under s 501 of the Migration Act.
Migration Act 1958 ss 499, 501, 501(1), 501(1)(c)(ii)
Breavington v Godleman and Others (1989) 169 CLR 41
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
R v Miranda (99/11/3035) 9 May 2001, Shadbolt DCJ
R v Miranda [2002] NSWCCA 89
REASONS FOR DECISION
8 November 2004 Professor GD Walker, Deputy President Summary
1. The visa applicant, Pierre El Weddy, who is aged 33 and a citizen of Lebanon, arrived in Australia on 12 September 1994 on a visitor visa valid for three months, which was extended until 12 July 1995. On 11 July 1995, Mr El Weddy applied for a protection visa which was subsequently refused. Between December 1997 and March 2003, Mr El Weddy remained in Australia illegally and worked unlawfully. On 18 May 2002, he married the review applicant, Claudine El Weddy, and on 28 April 2003, lodged an application for a subclass 309 spouse (permanent) visa.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr El Weddy made false and misleading statements in his protection visa application and that he remained illegally in Australia between December 1997 and March 2003 and worked unlawfully during this period. The respondent therefore refused Mr El Weddy’s spouse visa application. That is the decision to be reviewed by the tribunal.
Background
3. The applicant, Mrs Claudine El Weddy, was born in Auburn, New South Wales, on 19 June 1974 and is aged 30. She is employed as the sales and marketing co-ordinator for Tyco Electronics at Castle Hill, New South Wales.
4. The visa applicant, Mr Pierre El Weddy, was born in Kobbe, Tripoli, Lebanon, on 15 October 1971 and is aged 33. On 31 August 1994, Mr El Weddy was granted a subclass 673 visitor visa valid until 8 December 1994 (T p110). He subsequently arrived in Australia on 12 September 1994 (T p109). On 8 December 1994, he applied for and was granted an extension to his visitor visa valid until 7 March 1995 (T p110). On 7 March 1995, he applied for a further extension of his visitor visa which was granted until 12 July 1995 (T p111).
5. On 11 July 1995, Mr El Weddy lodged an application for a protection visa, through his then migration agent, Davidson James & Associates (T5 p28). The application stated that he had to flee Lebanon because he was an active member of an organisation called the “Young Christians Movement” (“YCM”) and that because of this membership, he had been the target of abuse, detention and threats by Moslem extremists, and that if he were forced to return to Lebanon, he feared he would be arrested and detained and “might even be killed by the Syrian Secret Police” (T pp44-45). On 11 July 1995, Mr El Weddy was granted an associated bridging visa E allowing him to remain in Australia for 28 days following a determination of his application (T6 p58).
6. On 27 June 1996, a delegate of the then Minister for Immigration and Multicultural Affairs (“DIMA”) refused Mr El Weddy’s protection visa application on the grounds that he did not find Mr El Weddy credible at interview and doubted that it was simply a coincidence that he applied for a protection visa the day before his visitor visa expired; some of the claims made by the visa applicant at interview were far-fetched and fanciful; nothing amounting to persecution had ever happened to the visa applicant in Lebanon; and, that Mr El Weddy does not have a real chance of Convention-based persecution if he is returned to Lebanon and his fear of persecution is not well founded (T pp60-68).
7. On 25 July 1996, Mr El Weddy applied to the Refugee Review Tribunal (“RRT”) for a review of DIMA’s decision and on 8 October 1997, the RRT dealt with this matter on the papers, Mr El Weddy not having replied to an invitation to give evidence. On 19 November 1997, the RRT affirmed the decision that Mr El Weddy was not a refugee (T7 p69). On 25 December 1997, Mr El Weddy became an unlawful non-citizen in Australia.
8. In March 1999, Mr El Weddy met Mrs El Weddy at Ziggy’s Restaurant in Sydney, New South Wales, and in April 1999, they commenced a relationship. On 18 May 2002, Mr El Weddy and Mrs El Weddy were married at St Joseph’s Church, Croydon, New South Wales (T p129).
9. On 7 March 2003 Mr El Weddy, having been unlawful in Australia since 25 December 1997, applied for a bridging visa E which was granted, subject to his departing Australia before 4 April 2003 (T p82). On 21 March 2003, Mr El Weddy applied for a further bridging visa E which was granted, subject to his departing Australia by 14 April 2003 (T p90). He departed on 14 April 2003.
10. On 28 April 2003 (T15 p134), Mr El Weddy lodged an application for a subclass 309 spouse (permanent) visa with the Australian Embassy in Beirut (T13 p113). Included with his application was a reference from his employer in Australia prior to his departure, RFG Pty Limited dated 9 April 2003, which stated in part “We also guarantee that when Pierre returns from holiday his employment will definitely continue with the company” (T16 p135). On 14 October 2003, Mr El Weddy was interviewed by an officer at the Australian embassy. At that interview, he acknowledged that he did not fear for his safety in Lebanon, and that he lodged his protection visa application so that he could remain in Australia because he did not like living in Lebanon where he could not live with dignity and he could have a more comfortable life in Australia. He also informed the interviewing officer that if his visa application were refused, that his wife would reside with him in Lebanon (T19 pp145-148).
11. On 3 December 2003, a principal migration officer at the Australian embassy in Beirut informed Mr El Weddy that he was considering refusing his spouse visa application on the basis of his past and present general conduct and invited him to comment (T21 p149). By letter dated 19 December 2003, Mr El Weddy responded stating that he was subject to mistreatment in his country, that he had acted on the advice of a man he met in Australia when he applied for a protection visa, that he did not know that his application had been refused and that he was “stunned” when he found out that he had illegally overstayed in Australia for six years. He also sought on compassionate grounds to live with his wife in Australia (T22 p151).
12. On 3 February 2004, a delegate of the respondent refused Mr El Weddy’s spouse visa application on the grounds that he was not of good character having regard to his past and present general conduct and having decided not to exercise his discretion under s 501(1) of the Migration Act 1958 (“the Act”) to grant a visa to Mr El Weddy (T pp156-165). On 18 February 2004, Mrs El Weddy sought a review of this decision by the tribunal.
13. At the hearing, Mrs El Weddy was represented by Stewart Levitt, solicitor, of Levitt Robinson, solicitors, and the respondent was represented by Ishan Muthalib, solicitor, of Blake Dawson Waldron, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), which were admitted into evidence as Exhibit R1, together with the other evidence tendered by the parties at the hearing. For the applicant, oral evidence was given in person by Mrs El Weddy, Alweddy El Weddy (known as Michael El Weddy), Elias Fares, Anis Ghanem and Odelia Carmon. Mr El Weddy gave evidence by telephone from Lebanon. An Arabic interpreter was sworn in to assist.
14. For the respondent, Nigel Muir and Nadine Tamim gave evidence by telephone from Lebanon.
Relevant Law and Policy
15. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c)(ii), as follows:
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct; the person is not of good character; …
16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. Section 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation, under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, they exercise the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
18. The issue for the tribunal in this case is, therefore, whether Mr El Weddy is not of good character having regard to his past and present general conduct. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa to Mr El Weddy.
Evidence
The Character Test
19. The respondent contended that the visa applicant Mr Pierre El Weddy showed contempt and disregard for the law by remaining in Australia as an unlawful non-citizen for over five years and working during that time without permission, by making an application for a protection visa based on claims that he knew to be false and by maintaining those claims throughout the RRT review of the Minister’s delegate’s decision to reject his application. He had, the respondent argued, admitted in an interview with a departmental delegate conducted in Beirut on 14 October 2003 that the claims in his protection visa application were false.
20. It is convenient to take the steps referred to in this contention in chronological order. Mr El Weddy first put forward his protection visa claims in his application dated 5 July 1995 (T pp28-58). His reasons for seeking the visa are set out at T pp44-45 and are paraphrased by the Minister’s delegate in his decision record on T pp63-64. In his oral evidence Mr El Weddy said that his migration agent, a Filipino lawyer with Davidson James & Associates, filled in the form for him, by going through it with him, reading out the questions and ticking the appropriate boxes. When Mr El Weddy signed the form it was completed except for question 36 on T p44. The agent completed that section later, using notes he had taken when interviewing Mr El Weddy, who spoke through a friend who translated the agent’s questions into Arabic and his answers into English. In his oral evidence at the hearing Mr El Weddy confirmed the contents of that passage (T pp44-45), except for the opening words “I have to leave Lebanon because my life is in danger”.
21. The Minister’s delegate questioned Mr El Weddy about the claims in the protection visa application at an interview held on 12 June 1996. That interview was recorded on tape, but the respondent’s solicitor stated that the tape cannot now be found. Mr El Weddy stated that he was given a copy of the tape, which he no longer has, and he signed an Acknowledgement of Receipt for it (Exhibit R5). Nor does there appear to be a transcript or any contemporaneous record of the interview in existence. This interview is important, because the delegate’s comments about the visa applicant’s answers have been adopted and carried forward through the various stages of the RRT review and the current application for a spouse visa. The only written record is the delegate’s later summary on T p64 and his comments on T pp64-67.
22. The delegate began his assessment of Mr El Weddy’s claims in his application and of his responses at the interview with these words: “I did not find the applicant credible at interview. The tenor of his claims and the circumstances of the lodgement of the written application lead me to the conclusion that he does not have a subjective fear of persecution as he claimed” (T p64). The delegate gave several reasons for that assessment. The first was that the visa applicant did not lodge his protection visa application until 10 months after his arrival in Australia and on the last day before the expiry of his extended visitor visa. He noted that when those facts were put to the applicant at the interview, he claimed that it was simply “coincidence” that he had lodged his application on the final day of his visa, stating that he had been preparing his application in the meantime. The delegate did not accept that explanation. In his oral evidence, however, Mr El Weddy explained that he originally intended to come to Australia for only three months, partly in order to attend his niece’s baptism and partly in the hope that conditions in Lebanon would improve.
23. As the news from that country did not appear to be getting better, he studied his visa and concluded that he should apply to extend it, which he did. He extended it again a second time, still hoping for conditions to improve, but when they did not, and he was no longer eligible for further visitor visa renewals, he applied for a protection visa. It is hard to see why lodging the application on the last day he could lawfully do so showed that he did not fear what might happen to him if he were to return to Lebanon. The usual modus operandi for non-genuine protection visa applicants is to come to Australia on a visitor visa and apply for refugee status immediately on arrival. Mr El Weddy’s conduct, on the other hand, supports his explanation that he wanted to ascertain whether conditions would improve in Lebanon before seeking a protection visa. Further, applying on the last day before his visa expired is more indicative of an honest approach than applying after the visa has expired, as so many others have done. On this as on a number of other points, the explanations offered in his oral evidence at the hearing added detail and background to the brief comments and paraphrases contained in the earlier documentary evidence. That is not surprising, as he had a greater opportunity to do so, with a qualified interpreter and more time. There is no evidence of the duration of the interview on 12 June 1996, but the second interview on 13 November 2003 lasted between 30 minutes and an hour, and in the absence of other evidence it is reasonable to assume that the 12 June 1996 interview was of a similar duration. At the hearing, on the other hand, Mr El Weddy was cross-examined for a total of approximately four sitting days and his responses at all stages were explored in the greatest detail.
24. The delegate also stated that there were “credibility” issues associated with the claims of fear of persecution on return: “The applicant claimed that seven to ten of his friends in the YCM were arrested on one occasion in 1992. He was unable to explain how he knew that they had been jailed by the Syrians, inferring that he assumed this because they did not return. Yet very shortly after this statement the applicant claimed that his friends were only held for three or four days and yet later in the interview he stated that “his friends were tortured using electricity and other means” (T p65). The YCM was the youth wing of the Lebanese Forces movement (“LF”), which seeks to protect the interests of Christians in Lebanon.
25. His oral evidence, however, reconciles the apparent discrepancies that the delegate noted. He explained that groups of people were being arrested from time to time. Some, who were from his own YCM group, he regarded as friends. Others were local YCM or LF supporters from other groups, who he regarded as Christian “comrades”. He heard about their experiences because Hadchit is a small town and everyone knew what was happening. Of the members of his own YCM group, three or four were arrested in 1992, detained for three or four days and subjected to physical abuse, though not specifically to torture. The ones subjected to electrode treatment were “comrades” arrested in Hadchit, which is regarded as overwhelmingly a Christian stronghold. Still other “comrades” had been arrested and had not returned by the time he left for Australia in September 1994. When in Australia he learned that they had been held for a few days and then released, after which they had fled to Beirut where they were less likely to be targeted by the Syrians. Mr El Weddy’s oral explanation of these events is consistent with his earlier statements, and the figures approximate to his original estimate of seven to 10. His account is supported by Mr Elias Fares, honorary director of the Sydney LF branch and national LF treasurer. Mr Fares has regularly spent periods of several months in Lebanon, including in Hadchit, and knew of Pierre El Weddy’s LF affiliation even before the latter came to Australia in 1994. He is not familiar with the visa applicant’s personal experiences because everyone who came from that area had a story and it was not the practice to talk about it. Besides, “Pierre is a very private person”. But the events the visa applicant described “were a general thing in that age group”. The police would come to town every week, or more often, and take 15 or 20 people who would be detained for an hour or a week or longer. Mr Fares added that even today he fears for his safety when he visits Lebanon, although he is an Australian citizen. In recent years he has been detained for periods of several hours for questioning at police stations. Mr El Weddy’s account of the 1992 events at the June 1996 interview may not have been very orderly or methodical, but the statement of the facts he gave has not been shown to be false in any particular.
26. In his assessment of Mr El Weddy’s claims, the delegate also rejected the applicant’s statement that he followed a different road from Hadchit to his fulltime work in Bcharre during 1994 in order to avoid detection by the Syrians. The delegate did not accept that the applicant would be able to evade detection by an occupying force of 35,000 Syrian troops simply by taking back roads. In his oral evidence Mr El Weddy stood by his statement, saying that there was another road further down the hillside on which there was no Syrian army checkpoint, and he made a practice of following that road. There is nothing inherently implausible about that aspect of his story. Over the past century people have been able to avoid the patrols and roadblocks of occupying forces considerably larger than the Syrian army by methods similar to that. As Mr Levitt pointed out, even in Australia it is thought that some people have managed to avoid random breath testing by analogous means.
27. A further aspect of the applicant’s claims that the delegate regarded as proof of mendacity was his account of an incident in 1994 in which Mr El Weddy had been dining in a restaurant when a person sitting next to him proposed a toast to Samir Geagea, a popular leader of the Lebanese Christians who had been imprisoned in April 1994. At the interview in June 1996, he had told the delegate that two days later, as a consequence of his presence in the restaurant at that time, he was detained by the Lebanese army. This story the delegate thought “both far-fetched and fanciful”. The visa applicant repeated that account in his oral evidence and added that he had been stopped on a road by two Muhabarat (secret police) officers who told him he was wanted for interrogation. That had happened to another of his friends shortly beforehand. He was told to report to a Lebanese army base, where he was required to wait for between four and five hours to see a particular officer. At first he was told the officer was watching a soccer match and that Mr El Weddy should return in two hours. Later he was told to return on the following day when after another five hour wait he was informed that the lieutenant was out jogging. An hour later he was questioned by the officer and warned not to discuss politics again.
28. The delegate thought it incongruous that the applicant would seek to leave Lebanon after such “an unremarkable meeting”. But Mr El Weddy’s reaction needs to be viewed in context. His brother Alweddy El Weddy (known as Michael), an Australian citizen living in Granville, New South Wales, gave evidence of an experience he had in May 1987 at a Syrian military police checkpoint. The officer-in-charge knew Michael was a Christian because Lebanese identity cards state the bearer’s religion. It also showed that he lived in Hadchit, a known Christian stronghold. He was pulled from his car and flogged with a length of steel cable that had been preheated in a fire that was burning to keep the military police warm. He was confined to bed for two or three weeks to recover. His brother Pierre El Weddy saw the wounds and was well aware of what happened. Michael El Weddy still bears the scars of that experience on his back and showed them to the tribunal. In addition, there was the regular detention, abuse, and on one occasion torture of his friends or “comrades”, threats, being spat on by groups of people opposed to the Christians and a general feeling that he would never be free to speak his mind. Pierre wanted to flee, Michael said, because he was young, Christian, hot-blooded and would be beaten or persecuted if he expressed his opinions; “His only other option is to shut up and live in shame”. Mr Fares confirmed that after the LF was dissolved as a political party in 1992, conditions for Christians in Lebanon continued to deteriorate, the process reaching a climax in April 1994 with the imprisonment of Samir Geagea.
29. Mr Muthalib argued that it had not been shown that the visa applicant had ever been a YCM member, pointing out that his brother Michael was unaware of his membership until after he arrived in Australia in 1994. The visa applicant said, however, that he had refrained from telling Michael about his joining the YCM because he feared his brother would try to persuade him against it because of fears for his safety. That was a reasonable explanation, given Michael’s own ordeal at the Syrian MP checkpoint.
30. The visa applicant’s concern about conditions in Lebanon was also corroborated by Mr Ned Gabrael, a construction contractor who had worked with him. From what the visa applicant had told him, Mr Gabrael was aware that Pierre El Weddy feared to return to Lebanon, especially north Lebanon, because conditions there were not safe. That fear was based on personal experiences that he had related to Mr Gabrael. He had also described how he had been refused a position in the customs service in favour of another man from the same area, despite the other’s lower examination marks, because Mr El Weddy’s family was opposed to the Syrian occupation.
31. The delegate thought that the circumstances of the encounter with the Lebanese army lieutenant in 1994 “are inconsistent with his claim that he is wanted by the Syrians and that the Syrians operate by having the Lebanese authorities arrest people on their behalf” (T p67). Yet Mr El Weddy was in fact detained by the Lebanese army, and quite possibly at the instance of the Syrians. Although he does not claim to have been ill-treated during that episode, in light of the other circumstances just mentioned, it would by no means be fanciful or far-fetched to think that more unpleasant experiences might be in store for him in the future now that he had received the authorities’ personal attention. Mr Fares said in his affidavit that in LF circles in Lebanon Pierre El Weddy was regarded as very loyal and committed to the Lebanese Christian cause. It is unlikely that the authorities were unaware of his commitment. Pierre El Weddy recalled that after the jailing of Geagea, pressure on the LF increased and “things were coming on top of each other. I didn’t want to wait for something to happen to me when the situation was going backwards.” What was undoubtedly clear was that he would not be able to live or express himself in freedom.
32. “Finally, I also find it inconsistent,” the delegate wrote, “particularly in light of the other unsatisfactory aspects of the applicant case (detailed above), that the applicant would not be picked up by the Syrians in 1992 when he claims he was a founding member of YCM” (T p65). This, the delegate said, confirmed his view that Mr El Weddy was “not a high profile person”, and was unlikely to be singled out for arrest, torture or similar ill treatment. That was probably true, but it does not mean that the applicant fabricated his claims. Any fears of death, imprisonment or torture he may have had were perhaps unlikely to be realised, and since his return to Lebanon they have not, but that does not mean he invented the facts that gave rise to his (now seen to be unfounded) fears. As no-one can have factual knowledge of the future, all predictions or forecasts are in a sense “fabrications”. The test of a person’s integrity is not the accuracy of his or her prophecies, but the truth of the facts stated as justifying the prediction. Further, his fears of lesser forms of persecution within the meaning of s 91R of the Migration Act were entirely well founded. As McHugh J explained in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 255 at 258, “Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group”. It is also worth noting Mr Fares’ evidence that even today he fears for his safety when visiting Lebanon, even though he is a native-born Australian citizen.
33. It should be recalled that none of Mr El Weddy’s representations of fact has ever been shown to be false. On none of the occasions when he has been able to speak for himself, from his first interview in 1996 to his oral evidence to this tribunal, has he ever claimed that he left Lebanon because his life was in danger. There are no clear inconsistencies between his various accounts over the years and such minor differences as there are fall within the normal range of approximation and of human recollection of events that took place up to 12 years earlier. The delegate thought that the visa applicant’s experiences did not amount to a showing of a real risk of persecution, but that does not mean he invented the experiences or his reaction to them. Nor does the fact that the delegate disbelieved him.
34. The next ground on which the respondent contends that the visa applicant has displayed contempt and disregard for the law is that he maintained claims that he knew to be false throughout the RRT review of the refusal of his protection visa application.
35. The evidence showed that the visa applicant did receive the department’s notification dated 27 June 1996 that the delegate had refused his application for a protection visa. It seems likely that he received the letter through his agent at Davidson James & Associates and that the original mailed to his home address did not arrive, as he had changed his address. From the RRT’s decision and reasons dated 19 November 1997, it appears that the application for review was lodged on 25 July 1996. Over a year later, the RRT invited the applicant to attend a hearing before the tribunal on 8 October 1997, pointing out that it could not reach a decision favourable to him on the basis of the material in his file alone. He did not reply to the invitation, however, and did not attend the hearing. The RRT noted that “The Applicant is represented by an adviser who has not responded to any correspondence copied to him” (T p70). The tribunal then proceeded to decide the matter on the papers alone.
36. The tribunal’s reasons do not refer to any evidence concerning the nature of Mr El Weddy’s claims other than the statement made in his original protection visa application and in the interview of 12 June 1996 relating to it, as later summarized by the delegate.
37. The RRT’s adverse findings were based on the proposition that the visa applicant had destroyed his own credibility by retreating from his earlier claims that he had suffered as a result of his political and religious views: “The Applicant’s claims at the DIMA interview [of 12 June 1996] represent a significant retreat from his earlier claims: he himself was never detained, his group was too small and parochial to achieve or even help achieve its claimed goals, nothing significant ever happened to him after he left school in 1992” (T p74).
38. Yet Mr El Weddy had never claimed that he had been arrested as his friends had been in 1992, imprisoned for several days and physically abused as they had been, or tortured with electrodes as he had heard some other acquaintances had been in 1992. He had, however, been ordered by the secret police to report to an army base for interrogation in 1994 following the Geagea incident, where he was required to spend approximately two days and undergo some questioning by a Lebanese army officer. That constitutes being “detained” by the normal understanding of that word. Nor had he ever claimed that his group was powerful enough to achieve or help achieve its stated goals, at least on its own. Even if he had, that would have been an over-sanguine expression of opinion or aspiration rather than a false statement of fact. By the standards of twentieth-century human rights abuses, it was no doubt reasonable to say that nothing significant happened to him after he left school in 1992, but the point here is that he never claimed that he had personally experienced anything worse than the sequel to the Geagea incident. Though he may have lacked sufficient grounds for a protection visa, he did not fabricate any tales of imprisonment or torture in an attempt to obtain one.
39. The RRT also considered that his failure to appear for the purpose of giving evidence to the RRT on 8 October 1997 “constitutes a further retreat from the claims the Applicant initially made” (T p74). That would be a justified conclusion if Mr El Weddy had been made aware of the invitation, but as the RRT itself noted, his migration adviser had not responded to any correspondence sent to him. And as is shown below, through a clerical error the RRT addressed no correspondence to Mr El Weddy’s address at all.
40. At the hearing before this tribunal, Mr El Weddy related how he had telephoned his migration agent, the Filipino lawyer at Davidson James & Associates, after receiving the letter informing him of the failure of his protection visa application dated 27 June 1996. His sister had translated for him and the conversation lasted three or four minutes. The agent had said not to worry, that he would appeal against the refusal. The next time he went to see the lawyer at his offices in Castlereagh Street, Sydney, he found that the office was closed and was told that the lawyer was “either on the run or in jail”. Mr El Weddy could not recall the name of the Filipino solicitor with whom he had dealt in connection with his protection visa, but the address for service given on the visa application and the application for RRT review was c/- Davidson James & Associates, Suite 14, 301 Castlereagh Street, Sydney NSW 2000 (T34, Exhibit R3). At the hearing I mentioned a personal recollection that Davidson James & Associates had in some way been used as an operating base by one Abel (Abelardo) Miranda, a migration agent who had been convicted for various migration offences. No evidence or other information on that point was forthcoming at the hearing, however. Subsequent research elicited the sentencing comments of Shadbolt DCJ and the decision and reasons of the New South Wales Court of Appeal in R v Miranda (R v Miranda, 99/11/3035, 9 May 2001, Shadbolt DCJ; R v Miranda [2002] NSWCCA 89). Judge Shadbolt’s reasons contain a number of findings of fact that were later adopted by the Court of Criminal Appeal. As this matter was drawn to the parties’ attention at the hearing, it is appropriate to make use of this material. Accordingly, it is necessary briefly to relate the strange story of Abelardo Miranda.
41. In 1995, Miranda set himself up as a migration agent under the guise of being an employee of the Parramatta law firm Davidson James & Associates. He carried on this business from an office at Suite 13 (Suite 14 according to the evidence before the tribunal), 301 Castlereagh Street, Sydney. At no time was Miranda licensed to practise as a migration agent. He had approached Mr Davidson James offering to bring him clients who were in need of legal advice on immigration matters, such persons having been clients of another solicitor in the Parramatta area who was no longer in practice.
42. Mr James had agreed to the arrangements on the basis that such clients were referred to him so that he could assess whether he could assist them in their applications and, if so, that the applicant would obtain for those clients any necessary documentation required by the department.
43. A few cases were referred, but many were not, and Miranda made application for many others requesting visas that these applicants did not want, nor made application for. He did this by including a false statement, often of a lurid character, of their persecution in their countries of origin, and other incorrect information. “In doing this,” Judge Shadbolt said, “he jeopardised their prospects of success with the Department and relieved them of sums of money by charging exorbitant fees”.
44. Many of the clients thought they were applying for extensions to student visas or other normal types of visas, and were shocked by both the discovery that they had in fact applied for protection visas and of the fabricated grounds on which the applications had been made.
45. Miranda had employed a number of staff to work in his office, who would complete the various migration department forms on behalf of the various people who had come to him for assistance.
46. For a considerable time Mr James was quite unaware of what was happening, but on 25 July 1997 he wrote to Mr Miranda saying that it had come to his attention that immigration work had been carried out in which stationery and stamps of Davidson James & Associates were being used.
47. The department launched an investigation and Miranda was first charged on 16 March 1998 with numerous offences under the Migration Act. On 9 May 2001 he was sentenced on 17 counts under the Migration Act, including receiving fees for giving immigration assistance when he was not a registered migration agent. Four other offences were also taken into account. Shadbolt DCJ imposed cumulative sentences of imprisonment which on appeal were reduced, by reason of Miranda’s serious health problems, to a sentence of three years imprisonment. Miranda was later charged with another group of offences, uttering false documents in breach of s 67(b) of the Crimes Act1900 (NSW). The Parramatta firm of Davidson James & Associates is still in practice and it has never been suggested that it was a party to any unlawful or improper dealings. Mr James was a prosecution witness in the criminal proceedings and his evidence was accepted.
48. From the addresses on the documents lodged in connection with the protection visa and the RRT appeal it is evident that the Filipino lawyer who conducted Mr El Weddy’s application was none other than Abel Miranda. It is now a matter of public record that it was Miranda’s practice to make false statements in protection visa applications, without instructions and without the knowledge of the applicant. This significantly corroborates Mr El Weddy’s assertion that the claim that he had left Lebanon because his life was in danger was inserted into his otherwise correct application by his lawyer without Mr El Weddy’s knowledge or approval.
49. The evidence now before this tribunal therefore does not support the proposition that the visa applicant had changed his story or retreated from his original claims in any material respect. Yet the Minister’s delegate Mr Muir relied on the RRT’s conclusions on this point in his reasons dated 3 February 2003 [scil. 2004] rejecting the spouse visa application, which is the reviewable decision at issue in this case.
50. The next basis on which the respondent contends that the visa applicant has shown contempt and disregard for the law is that he remained unlawfully in Australia for over five years between 1997 and March 2003 and that during that time he worked without permission.
51. The visa applicant has always maintained that he did not receive the Refugee Review Tribunal’s letter of 20th November 1997 informing him that his review application had been unsuccessful (T pp145, 151). As he had not heard anything to the contrary, he thought his application must have succeeded, believing that if the review application had failed, the immigration authorities, who knew where to find him, would have come for him (T p146). During this time he applied for a tax file number. As that application was accepted by the Commonwealth, that seemed a further indication that his situation was now lawful. He obtained employment and, as Mr Gabrael confirmed in his oral evidence, he always worked under his own name. He used his passport to apply for a driver’s licence. Mr El Weddy had no reason to believe that his situation was irregular, he said, until he and his wife went to the Karim Kirswani travel agency at Harris Park. Their first wedding anniversary was approaching and they were planning an overseas trip. On being shown Mr El Weddy’s passport, however, the travel agent, after examining the visa, advised him to approach the department to ascertain whether his presence in Australia was still lawful. He did so, and on being told that he had been illegal since 1997, was “stunned” by the news. He was advised that the only solution to his problem was to travel to Lebanon and apply for a visa from there. He thereupon telephoned Lebanon to ascertain whether he could return. His family told him that the situation there was now much better and that he could return as long as did not interfere in any political issues (T p151).
52. Mr El Weddy has always attributed his absence of knowledge about the failure of his review application to a change of address: “we moved to another address, and our old neighbour brought us the letters we received at the previous address. And among the letters, not one was from DIMIA” (T p151).
53. The Minister’s delegate who rejected the spouse visa application did not accept that explanation. In his statement of reasons he concludes that “I also believe that Mr El Weddy was aware that his application to the RRT had been rejected in 1997. His story that whilst other mail reached him during this period but the RRT decision did not lacks credibility” (T p161). Not only was Mr El Weddy’s account of the events rejected, therefore, but his explanation in itself was treated as evidence of his alleged lack of credibility.
54. The true explanation, the evidence shows, is neither of the above, but it is closer to Mr El Weddy’s account.
55. Exhibit R3 consists of a copy of the application for review by the RRT, which is dated 18 July 1996, together with three letters from the RRT to Mr Pierre El Weddy. Paragraph seven of the application for review shows the applicant’s home address as 47 Miller Street, Granville South, NSW. The address for service is shown as Davidson James & Associates, of Suite 14, Level 1, 301 Castlereagh Street, Sydney. Both addresses were correct at the time. Mr El Weddy’s home telephone number was also given.
56. The first letter from the RRT to Mr El Weddy, dated 25 July 1996, acknowledges receipt of his application and follows with four paragraphs of instructions. The RRT’s letter of 5 September 1997 invites Mr El Weddy to a hearing to be held on 8 October 1997 and contains further information about the hearing. It also instructs the review applicant to telephone the RRT’s office to say whether or not he wanted a hearing, and requires him to complete and return the enclosed “request for hearing” form within 14 days. It points out that if the RRT did not hear from Mr El Weddy within 14 days, a decision would be made on the evidence available. Opposite the address of the addressee appears the handwritten note “RP2155579”, apparently indicating that the letter was sent to that address by registered mail. The third letter, dated 20 November 1997, informs Mr El Weddy that his application for review has been unsuccessful and encloses the RRT’s decision and reasons. That letter also appears to have been sent by registered mail and bears the handwritten note “RP3211620”.
57. Each of the letters was addressed to Mr Pierre El Weddy, c/- Davidson James & Associates, at the Castlereagh Street address. At the foot of each letter appeared the note “cc: Davidson James & Associates (Sydney)” at the same Castlereagh Street address. This evidence therefore shows that both the original and the copy of these letters, including the letter notifying Mr El Weddy of the rejection of his review application, were sent to the Davidson James & Associates, Castlereagh Street office, and in no case was a copy sent to Mr El Weddy at the home address that he supplied in his application for review. Mr El Weddy received no notification that his review application had failed, not because he had changed his address and the letter had not been passed on to him, but because no letter had been sent to him in the first place. The evidence therefore confirms his claim that he was unaware that his stay had become unlawful and incidentally supports his veracity and credibility.
58. The department’s normal practice is shown by its letter to Mr El Weddy dated 13 May 1996 (part of exhibit R5). That letter is addressed to Mr El Weddy at 22 Reid Street, Merrylands, and at the foot of the letter appears the note “cc: Davidson James & Associates”, followed by the Castlereagh Street address. At the top of the letter appears the handwritten note “008709-client, 008710-agent”, which were the certified mail sticker numbers. The practice at the RRT, however, was apparently to address the letter to the address for service supplied on the review application form (in this case c/- Davidson James & Associates) and place a “cc” at the foot of the letter indicating that a copy had gone to the applicant at his home address. But as Exhibits R3 and R5 indicate, in all its correspondence with Mr El Weddy, the RRT sent both the original and the copy to Davidson James & Associates and did not send a copy to Mr El Weddy. That clerical error would have been of no consequence if Abel Miranda had not absconded without informing the RRT or his clients or making any arrangements for them, but in the circumstances it proved crucial.
59. It could still be held against Mr El Weddy (and the delegate’s reasons do so at T p161), that he should have made active inquiries to make sure that his visa situation was now in order. That he failed to do so may not be altogether surprising given his background; he may well have expected to be promptly arrested if the application failed. When he was not, he thought it prudent not to stir matters up − a perhaps understandable reflex in one who has experienced life under arbitrary government. Nevertheless, he was under at least some kind of obligation to make sure that his stay was lawful, and he failed to meet that obligation. Yet that kind of mild velleity falls far short of showing contempt and disregard for the law, as the delegate implicitly admitted at the hearing (see below).
60. None of the material in exhibits R3 and R5 was incorporated in the T documents.
61. The second main count in the respondent’s case on the character issue is that in an interview with a delegate of the department conducted on 14th October 2003 in Beirut, the visa applicant admitted that the claims made in his protection visa application were false.
62. The delegate of the Minister who refused the protection visa application, and the RRT who reviewed that decision, also stated that the visa applicant’s claims were inconsistent and that he lacked credibility.
63. No tape recording or verbatim transcript of the 14 October 2003 interview exists. The record consists of some two pages of handwritten notes (T pp145-146) made by the interviewer, Mr Nigel Muir, who was also the Ministerial delegate who decided to refuse the spouse visa application. Mr Muir gave oral evidence by telephone at the hearing, after some difficulty in communicating with him because he spends a good deal of time in the field, including on this occasion an expedition to the Iraq border during which he was completely out of contact. It was therefore necessary to interpose his oral evidence during the applicant’s case, in fact in the course of the cross-examination of Mr El Weddy. This was less than ideal, but unavoidable. Mr Muir is a Principal Migration Officer (Compliance) employed by the Department of Immigration and Multicultural and Indigenous Affairs at the department’s post in Beirut. He has been employed by the department since January 2001, and before that worked with the Australian Security Intelligence Organisation. Since joining the department he has conducted between 40 and 50 character interviews. Mr Muir described the standard format of such interviews, which he believes he followed in this instance, by introducing himself and Ms Nadine Afif Tamim, a locally engaged staff member. He did not introduce her as an interpreter but as a locally-based officer, but indicated that she would be doing the interpreting. He did not recall how long the interview lasted, but Mr El Weddy said it took between 30 minutes and one hour.
64. Mr El Weddy said that in the course of the interview, the man (Mr Muir) left the room for a period of five to 10 minutes or longer, returning about 10 minutes before the interview concluded. During his absence Ms Tamim continued to ask questions and took notes which she showed to Mr Muir. Mr Muir confirmed that sometimes it is necessary for him to leave in the course of an interview for varying periods, but he did not recall whether he had done so on this occasion. The notes should record it, he said, including whether the interpreting officer asked any questions and obtained replies during his absence, but they do not indicate that she did. Ms Tamim could not recall this interview specifically, but said it would be contrary to her practice to ask questions, to make notes other than to assist translation or to discuss the interview with Mr Muir.
65. Mr Muir conducts numerous interviews of this kind and has no clear recollection of what transpired at this particular one, though he stated his usual practice and acknowledged that sometimes he does have to leave in the course of the interview and that sometimes the interpreter asks questions and takes notes. As Mr El Weddy has had two such interviews, his description is not at odds with Mr Muir’s outline of how such interviews can unfold and as Ms Tamim does not recall the interview in question, Mr El Weddy’s account is perhaps more likely to be accurate. It is hard to see what incentive he could have to make up such apparently insignificant details. He also mentions that the interviewers were polite and did not make him feel uncomfortable.
66. Turning to the interview notes, Mr Levitt argued that it might be significant that one question and answer (on the second page), “Should you have had a visa? − I suppose so”, is written in slightly more cramped handwriting and appears to have been inserted after the paragraphs above and below it were written. Mr Muir explained that while taking notes he “went back and forth over the page,” but it is not impossible that this was one of the questions allegedly put by the interpreter while Mr Muir was out of the room, of which she made a note and showed the note to Mr Muir. Mr Levitt drew attention to these possible discrepancies, and also to the fact that Ms Tamim was not an accredited interpreter and was a Moslem, whereas the visa applicant is a Christian activist. On the basis of these and some points of evidence about dialects he argued that the interview of 14 October 2003 was vitiated by bias, by procedural irregularities and by defects in translation. The last point was abandoned in light of other evidence and I do not think the allegations of bias or lack of procedural fairness can be sustained. The view I have formed on the character issue makes it unnecessary to canvass those allegations in detail.
67. It is important to note that while the respondent contends that during that interview Mr El Weddy admitted fabricating his protection visa claims, nowhere in the notes of the interview itself does Mr El Weddy say that he fabricated anything. The only reference to fabrication is at the beginning of the notes, where Mr Muir sets out a recital of the June 1996 protection visa rejection reasons, that the applicant lacked credibility and had probably fabricated his claims. In his written statement of 6 September 2004 Mr Muir also states that “The applicant fabricated his protection claims”. By contrast, in his reasons for decision dated 3 February 2003 [scil. 2004], Mr Muir wrote that “the applicant denied that he had fabricated his protection claims but again confirmed that he had not feared for his safety in Lebanon” (T p159). What the claim appears to mean, therefore, is that Mr El Weddy said things at the interview that the delegate viewed as amounting to admissions of fabrication. In his oral evidence Mr Muir confirmed that interpretation.
68. There appear to be three of these statements. The first is that he admitted, contrarily to the statement in his July 1995 protection visa application (T p44), that he did not leave Lebanon because his life was in danger. The notes of the October 2003 interview report him as saying, “no one would harm me, no one would kill me.” “[It] was an issue of dignity, [I] didn’t like it in Lebanon. [It is] a more comfortable life in Australia” (T p146). By “comfortable”, he meant that there was safety, dignity and respect for human rights. In neither of his interviews, however, did Mr El Weddy claim that he left Lebanon because his life was in danger. On the contrary, he said that he “could have survived, but [with] some humiliation” (T p145). In his oral evidence he repeated that he had not said that his life had been in danger and that his migration agent (Abel Miranda) must have added it himself. That is an easy claim to make, of course, but it seems probable that if Mr El Weddy had intended to claim that his life had been in danger, he would have maintained that assertion at his original protection visa interview in June 1996. Although, as has been noted, no contemporaneous record of that interview has been produced, the later summary of that interview by the delegate does not state that the applicant said he had to leave Lebanon because his life was in danger (T p64). As the findings in R v Miranda (supra) referred to above make it clear that the insertion of false statements in protection visa applications without the applicant’s knowledge or approval was standard procedure for Abel Miranda, it is reasonable to accept Mr El Weddy’s evidence that this was what happened in the present case.
69. The second statement that seems to be relied on as evidence of fabrication is that Mr El Weddy “lodged pv to extend stay in Australia (stated twice)” (T p146). In his reasons for decision Mr Muir rendered this as follows: “when asked why he had lodged a Protection Visa claim Mr El Weddy stated that he had done so in order to prolong his stay in Australia – this statement was repeated twice” (T p158). As it stands, that is an innocuous statement – presumably all onshore protection visa applicants lodge their claims in order to extend their stay in Australia. Later in his reasons, however, Mr Muir gives it a more pejorative significance: “It is clear that Mr El Weddy’s claims to DIMIA were based on calculated falsehood. I believe he attempted to mislead DIMIA officials. He admitted that he lodged a protection application solely in order to remain in Australia” (T p162) (my emphasis). The implication that Mr El Weddy wished to extend his stay in Australia for its own sake, and had no apprehensions about the life that might await him as a Christian activist in Lebanon, is created by the addition of the word “solely”, which does not appear in the record of interview.
70. The third statement that appears to have been relied on supporting the inference that Mr El Weddy had fabricated his claims appears in the notes in these words: “many Lebanese males were lodging PV to stay and work” (T p145). In his reasons for decision the delegate reported that statement as, “Mr El Weddy stated that he knew many young Lebanese males who were lodging Protection Visa claims in order to remain and work in Australia” (T p157). Again, by itself, that statement, mutatis mutandis, could be true of any bona fide onshore protection visa applicant. It could take on more suspicious connotations if it were shown that he had knowingly misrepresented the facts in his application or interviews, but the evidence does not support that inference. Nevertheless, the respondent’s statement of facts and contentions (Exhibit R2 para 19) states that the visa applicant “admitted at the interview with a delegate of the Department on 14 October 2003 that many young Lebanese men have made protection visa applications based upon false claims in order to remain in Australia”. The words emphasized do not appear in the interview notes and radically change the sentence’s meaning. In his oral evidence the visa applicant admitted knowing three or four young men from Hadchit who had sought protection visas, but they had been successful. He did not know anyone who had made a false claim for a protection visa, but conceded that there could be some. There is no factual evidence (as opposed to opinion) to the contrary.
71. When it was put to Mr Muir in cross-examination that the visa applicant had not fabricated any statements of fact at the interview, he replied, “He did when he said he didn’t know he was illegal”. At that stage Mr Muir seemed to be still under the impression that Mr El Weddy had been informed of the RRT’s decision, an assumption now known to be false. One may therefore conclude that Mr El Weddy was telling the truth at the interview.
72. In support of the contention that Mr El Weddy made false statements in connection with his protection visa application, the respondent relies, finally, on the remarks by the delegate who refused the protection visa application, and the RRT which reviewed the refusal, that the visa applicant’s claims were inconsistent and that he lacked credibility. Those comments by the delegate who rejected the protection visa application and by the RRT have been dealt with above. Despite their lack of evidentiary basis, however, the delegate who rejected the spouse visa application adopted those comments and went on to add the following: “I believe Mr El Weddy deliberately fabricated the extent of danger in which he claimed he would be placed if he returned to Lebanon, … This finding is based on the significant inconsistencies in his story, particularly the varying accounts he gave in his initial written application, at interview and at the RRT hearing” (T p161).
73. Mr El Weddy did not, of course, give any kind of account at the RRT hearing because, as the evidence now shows, the RRT wrongly addressed the letter informing him that the hearing was to be held. Apart from that (and subject to the exception above about the statement that he left Lebanon because his life was in danger, and which, has been noted, the evidence satisfactorily explains), there are no significant inconsistencies among any of his accounts, including his oral evidence. The account he gave at the original interview on 12 June 1996, in so far as can be ascertained in the absence of a contemporaneous record, appears to be more detailed than the paragraph in his written protection visa application, but that is no more than one would expect. The delegate here seems to be using the word “inconsistencies” as if it meant simply “differences”. But two statements are inconsistent only if they cannot both be true (cf Breavington v Godleman and Others (1989) 169 CLR 41 at 136-137, where Deane J speaks of “different but consistent” State laws), and not simply because they are different, for example because one is more detailed than the other.
74. It should here also be noted that Mr El Weddy’s claim that he was not notified of the RRT’s decision, which was taken by the delegate as proof of his lack of credibility, has been shown by the evidence to be true.
75. The third aspect of the visa applicant’s conduct on which the respondent relies as showing contempt and disregard for the law is his working in Australia without permission. Mr El Weddy has always freely admitted that he has worked for years in the construction industry. He denies, however, that by so doing he showed contempt and disregard for the law. “If I’d known it was wrong I wouldn’t have done it”, he said at the hearing. If his review application in the RRT had succeeded, he would have been entitled to work, and it is now clear that the RRT failed to inform him that his review application had been dismissed. While it would have been prudent for him to make active inquiries about the result of his review application, he proceeded on the basis that all was well, having heard nothing to the contrary. Having sought a TFN using his correct name from the same federal government as had handled his visa application, and having obtained a TFN without difficulty, he felt confident that all was in order. That conclusion was incorrect and unjustified, but perhaps understandable. When Mr Muir was asked if the visa applicant’s conduct in this respect showed bad character, he did not say that it did but only replied, “I think he had doubts”. In my view that conduct by Mr El Weddy did not constitute contempt and disregard for the law.
76. As against the evidence relied on by the respondent, character evidence was adduced in the visa applicant’s favour. Councillor Tony Issa OAM, of Parramatta City Council, who has known Mr and Mrs El Weddy for seven years, writes of them as honest, decent people who are active in the community (T p142). Mr Fares, Senior Development Engineer with Blacktown Council stated in his affidavit and in his oral evidence that Pierre El Weddy is an honest and responsible man who is trustworthy and reliable in his dealings and is very highly respected. In his oral evidence at the hearing, Mr Gabrael, who has worked with the visa applicant in the construction industry, describes him as someone who is reliable and makes the effort needed to meet deadlines. He sticks to the job until it is done. His employer Mr Fred Ghosn, managing director of RFG Pty Limited, a formwork concrete and construction company, said he intended to employ him again as a formwork carpenter if he returns to Australia (T16 p135). Mrs Michelle Saba, a Justice of Peace who has known Pierre and Claudine El Weddy for about five years, describes Pierre as genuine, very caring and thoughtful. In her affidavit she draws particular attention to his high principles and ideals in relation to marriage. (The tribunal notes that whilst Mrs Saba’s affidavit was not tendered into evidence at the hearing, the solicitor for the respondent having indicated that he did not wish to cross-examine on its contents, the tribunal has taken this document into evidence as Exhibit A12.)
77. These supportive comments were borne out by his conduct at the hearing. In the course of his protracted cross-examination, comprising five sessions commencing at about 3:00 am local time, Mr El Weddy was presented with many opportunities to “improve” his story by adding or omitting alleged facts in ways that could not readily be checked. Yet he stood by his evidence, blemishes included. His conduct was that of someone who is honestly telling the truth to the best of his ability.
Application of the Law and Findings of Fact
78. As stated above, the first issue for the tribunal to decide is whether, pursuant to s 501(6)(c), Mr El Weddy passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the Applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an Applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
79. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
80. Secondly, the tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the tribunal decides that, in my view, the visa applicant, Mr El Weddy, does not pass the character test, the tribunal will then proceed to consider the exercise of the discretion in s 501(1) to not refuse to grant a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, the tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
81. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a) and 1.9(b) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)).
82. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
83. For the reasons given above I find that the visa applicant has not shown contempt or disregard for the law. He did not make an application for a protection visa based upon claims that he knew to be false or maintain those claims throughout the RRT review of the decision to refuse his application. He did, however, breach the Migration Act by remaining in Australia as an unlawful non-citizen for over five years, from December 1997 until March 2003. During that time he worked without permission.
84. This breach of the Act was due in part to his failure to make active inquiries about the outcome of his appeal to the RRT, but it was mainly due to his agent’s defalcation and the RRT’s failure, as a result of a clerical error, to notify him about the outcome of the appeal. The contravention is therefore largely based on a bona fide mistake of fact, as is plain from the fact that he applied for a TFN and a driver’s licence using his true name and address, and married, worked and conducted all his affairs in his true name. When told by his travel agent that there appeared to be problems with his visa, he immediately approached the department and placed all the facts that he knew honestly before them. He complied with the conditions in his bridging visa and duly left Australia before it expired.
85. While living and working in Australia for five years without the appropriate visa would weigh heavily against his being found to pass the character test if it were done with intent to defeat the Migration Act, in this case it was done innocently and largely without fault on the part of the visa applicant. His general conduct at all times showed an intent to comply with immigration law. He applied for his visitor’s visa in a proper and honest way, he twice sought extensions of it as it approached expiry, he applied for a protection visa before the second extension of his visitor visa expired. He complied with his bridging visas and with all the department’s directions, and supplied it with correct and effective addresses. He did not frequently change his address in a way that would suggest an attempt to avoid apprehension, but moved only three times in nine years. The most that can be said in opposition to his case that he is of good character is that he failed to make prompt and active inquiries that would have exposed the RRT’s error. That does not, in my view, constitute sufficient evidence on which to base a finding that he is not of good character. I therefore conclude that Mr El Weddy does pass the character test.
The Discretion
86. My decision that Mr El Weddy passes the character test suffices to dispose of this case, so there is no need to determine how to exercise the discretionary power in s 501(1). Nevertheless, it may be useful by way of background to refer briefly to the way in which the discretion might have been exercised. In exercising the discretion, the tribunal is to have regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
87. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian Community
88. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
89. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
90. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
91. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
92. With regard to the first primary consideration, the seriousness and nature of the conduct, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as serious. I have set out above my finding that Mr El Weddy did not make any false or misleading statements in connection with entry or stay in Australia, but he did remain unlawfully in Australia for over five years and worked without permission during that time. In the circumstances of this case, and particularly the fact that the main cause of Mr El Weddy’s unlawful stay and work without permission was a clerical error at the RRT following his agent’s default, I do not consider that his conduct in that regard is such that it could be described as very serious.
93. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that the visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. Again, in the circumstances of this case, I do not consider deterrence to be a significant factor weighing against the grant of a visa.
Expectations of the Australian Community
94. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
95. In my view, as the unlawful stay and work occurred mainly as a result of acts or omissions by others and with little fault on his part, I believe that the Australian community would not expect that a spouse visa would be denied to an otherwise law abiding, hard working and well-respected young married man seeking to rejoin his wife in Australia.
The Best Interests of the Child
96. The third primary consideration, the best interests of the children, is not relevant to this matter.
Other Considerations
97. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
98. The major factor under this heading is Mr El Weddy’s marriage to the applicant, Mrs Claudine El Weddy, an Australian citizen born in Australia. The couple met in March 1999 through some friends, began going out together in April and by June 1999 were seriously interested in each other. They became engaged in May 2001 and had a full-scale white wedding a year later. Mrs El Weddy had no idea that her husband might be living or working illegally in Australia until their travel agent raised that possibility in March 2003. She had thought all along that he had a protection visa. The couple purchased their matrimonial home at Greystanes thanks to a Commonwealth Bank mortgage, which now stands at $315,000. They renovated the house together, but did not cohabit before they were married. The monthly repayments are $850 and, as her husband is currently unable to contribute to that, Mrs El Weddy is having great difficulty meeting the payments and her other expenses from her salary in her position as sales and marketing co-ordinator with Tyco Electronics. She telephones her husband in Lebanon almost daily but the separation and uncertainty are having devastating effects on her. She finds it hard to concentrate at work, becomes distressed and depressed very easily and has had to seek the services of a clinical psychologist, Ms Odelia Carmon, who confirms the symptoms described and their causes (Exhibit A5). Because of her financial pressures, she was able to afford only one session with the psychologist.
99. For religious reasons divorce is out of the question for both parties and in any event that is the last thing they want. Mrs El Weddy is keen to start a family with her husband. She accompanied him to Lebanon in April 2003 to help him to get settled, and visited him again in December 2003, but finds it very difficult to meet the cost involved in visiting him. If a visa is refused, she would move to Lebanon, but as a Christian woman conditions there would be very difficult for her. She speaks some “social Arabic” but cannot read or write the language, nor does she speak French, Lebanon’s other major language. Although she did not mention it, the political and military instability of the Middle East must also be a factor weighing heavily on the mind of someone contemplating living there, especially a young woman hoping to start a family. Mrs Michelle Saba, a friend of the couple, visited Lebanon with her husband in August 2003. There she saw Pierre and observed that he was distracted by the separation from his wife and appeared to have lost a great deal of weight, even though he was of slim build to begin with (Exhibit A12). It is difficult for a Christian to find work in Lebanon’s construction industry at present, as most of the jobs are being given to Syrians, and that would be a further hardship factor if Mrs El Weddy were to be in the position of having to move to Lebanon in order to rejoin her husband.
100. If it were necessary to exercise the discretion in this case, I would consider that in the unusual circumstances of this case the balance of all the considerations would favour the grant of a spouse visa.
101. The decision under review is therefore set aside and the matter is remitted to the respondent for reconsideration with a direction that the visa application not be refused under s 501 of the Migration Act.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 6, 7, 8 and 17 September 2004 and
25, 26 and 27 October 2004
Date of Decision 8 November 2004
Representative for the Applicant Mr S Levitt, Solicitor
Representative for the Respondent Mr I Muthalib, Solicitor
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