Fathers and Minister for Immigration and Multicultural Affairs

[2000] AATA 270

DECISION AND REASONS FOR DECISION [2000] AATA 270

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q97/443

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      KATHRYN FATHERS      
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date7 April 2000    

PlaceBrisbane

Decision       The Tribunal affirms the decision under review.         

(Sgd)  DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa refusal – subclass 100 (spouse) visa – lack of good character – substantial criminal record – validity of a conviction from Lebanon – honour killing. 
PROCEDURE – Section 39 Administrative Appeals Tribunal Act 1975 – reasonable opportunity to present case and make submissions.
Migration Act 1958 s 501

REASONS FOR DECISION

7 April 2000            Deputy President DP Breen, Presidential Member                 

1. This is an application to review a decision by a Senior Migration Officer made on 1 April 1997 to refuse the visa applicant, Mr Adel Hawile, a Sub-class 100 (Spouse) Visa.

2. The applicant in these proceedings is the visa applicant's wife, Ms Kathryn Fathers.  Ms Fathers represented herself while the respondent Minister was represented by Mr R Gregg, Departmental Advocate.

3. The matter was heard before me in Brisbane on 23 November and 16 December 1998.  The matter was resumed for the hearing of oral submissions by the applicant on 13 August 1999, the respondent having provided written submissions on 3 February 1999.  At this resumed hearing, the applicant was asked to provide a letter from her doctor and a letter from the Lebanese Embassy.  Mr Gregg was asked to provide submissions in response to these, and anything the applicant had presented by way of her submissions.

4. The applicant provided the doctor's letter on 17 August 1999 but the letter from the Lebanese Embassy has not been provided as at the date of these reasons. No contact has been made by the applicant in relation to these proceedings in almost nine months. Given this timeframe, it is the Tribunal's opinion that it has discharged its obligation under Section 39 of the Administrative Appeals Tribunal Act 1975.

5. Section 39 of the Act provides:

   "Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and in particular to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."

6. Nine months is a reasonable opportunity to present the material requested and make any final submissions.  Accordingly, having satisfied this obligation, the Tribunal will hand down its decision in the matter on the material currently before it.

7. The visa applicant gave oral evidence at the hearing by phone from Lebanon as did his niece, Zeina Nahle.  The following documents were taken into evidence:

• Exhibit 1            "T" Documents

• Exhibit 2            Documents attached to the Statement of Facts and Contentions   Lebanese Court documents and the AAT decision of Sayed and   Minister for Immigration and Multicultural Affairs

• Exhibit 3            Amnesty International Documents

• Exhibit 4            US State Department Human Rights Reports

• Exhibit 5            Bundle of documents tendered by the applicant

1. The relevant legislation in this case is Section 501 of the Migration Act 1958 (as at April 1997).

   "501(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been grated to a person if:
   (a)       subsection (2) applies to a person;
   ……

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

   (i)        the person's past criminal conduct; or

   (ii)       the person's general conduct;
             is satisfied that the person is not of good character."

2. The facts of the case are as follows.

3. The applicant for review is an Australian citizen.  Whilst on holiday in Egypt she met the visa applicant, Mr Hawile.  This meeting was as a result of the applicant's friendship with Mr Hawile's sister who lives in Australia.  Mr Hawile is a Palestinian who was born in Lebanon but does not have Lebanese citizenship. 

4. The applicant for review and Mr Hawile were married on 29 October 1989.  Shortly after the wedding the applicant returned to Australia.  She maintained contact with the visa applicant by phone until her return to Lebanon two years later.  She stayed with the visa applicant for around six weeks before again returning to Australia.

5. The applicant returned to Lebanon in September 1996 for a period of 6 months.  The applicant gave birth to the visa applicant's son in November 1997 and has resided in Australia since that time.

6. In June 1992, Mr Hawile was arrested on criminal charges in Lebanon and was tried in June 1995.  He was convicted of "interfering to kill" and sentenced to three years' imprisonment, being time served.  The visa applicant has given three different versions of events leading to this conviction; at interviews with the Department of Immigration and at the hearing before this Tribunal.

7. Exhibit 2 indicates that the Lebanese Court was satisfied of the following facts:

(a)On Monday 8 June 1992, Mr Hawile's sister (Mrs Hiam Haweeleh), her male partner (Mr Hameed Kayrouz) and their three month old baby were fired on a number of times while they sat in a car.  Only the baby survived.  The gun was fired by the ex-husband of Hiam, Mr Hani Nahleh.

(b)A meeting had taken place on the previous day at which Mr Hani Nahleh had arranged with Mr Hawile and the other three brothers that they would accompany him to Kleiat town where he (Hani) would hill Hiam.

(c)Mr Hawile had confessed that they had planned the murder of his sister in order to avenge the honour and reputation of the family.

(d)It was not planned to kill anyone other than the sister.

(e)On the Monday, Mr Hawile, with two of his brothers, travelled in one car, while the other brother and Hani Nahleh drove in another car.  As they approached the house where Hiam lived, they saw her sitting in a parked car.  Hani Nahleh alighted from the vehicle he was travelling in and fired several shots into the car.  Hawile's sister and her partner were murdered. 

1. The evidence before me establishes that the intention of the criminals, though its execution killed both of them, was vengeance against the sister only, on the basis that she was a perceived adulteress.  Her murder by her ex-husband and her own brothers was intended to restore their perception of their own honour.  The killing of her partner was not intended – he was a male, after all – and fortunately the baby survived.

2. Before this Tribunal, Mr Hawile protested his innocence.  He alleged that the arrest and prosecution of the four brothers was politically motived and that the confessions had been beaten out of them.  Various human rights reports from Amnesty International were relied on to support the argument that these sorts of things do happen in Lebanon.

3. While it may be true that Lebanon's criminal justice system does not have as many safeguards for prisoners and detainees as Australia, the judiciary there is considered to be independent and impartial.   Australian case law decrees that the Tribunal should not go behind a conviction imposed by an Australian Court.  In my view, neither should it go behind a conviction recorded by a Lebanese Court.  This is particularly the case where the visa applicant was afforded due process and the conviction was recorded as an end product of that process.  Any Criminal Court process which proceeds to finality produces a verdict.  A verdict is a speaking of the truth.  The derivation of the word comes from two Latin words, namely "vere" meaning "truth" and "dicere" meaning "to speak".  The Criminal Court in Lebanon therefore must be accepted, by its verdict, to have declared the true circumstances and details of Mr Hawile's offence. As such, the conviction stands and the visa applicant comes to the Tribunal with that on his record.

4. On the basis of a conviction, for what is essentially conspiracy to murder, the visa applicant cannot be said to be of good character. He has continued to give conflicting evidence as to the extent of his involvement and the motivations for that involvement. This shows an enduring lack of good character. As such, Mr Hawile fails the character test in Section 501 of the Migration Act 1958.

5. The Tribunal must then decide whether to exercise its discretion in favour of the visa applicant by deciding that the visa should still be granted despite the fact that the visa applicant is not of good character.  The primary considerations in relation to the exercise of this discretion are the expectations of the Australian community and where a visa applicant is involved in a parental relationship with a child, the best interests of that child.  The secondary considerations include hardship suffered by the visa applicant and any Australian citizens or other permanent residents.

6. The expectations of the Australian community are that they will be protected and that people who have committed serious crimes will not be permitted entry into Australia.  While the crime of murder or accessory to murder is of great seriousness in itself, the visa applicant has been a participant in a family honour killing.  This is a practice which is totally abhorrent to the Australian community.  The gravity and abhorrence of this crime demand a finding that this man, on application of Australian law, be found to be a person lacking in character of a quality and kind required for the bestowal of the visa he seeks.  This is so to the exclusion of other factors, including that he has no other criminal convictions to be taken into account.

7. Another matter requiring specific findings is the question of the interests of the applicants' child.  I find that the interests of the child in question would be best served by his remaining in Australia.  The standard of health, education and welfare are higher in Australian than in Lebanon.  The child has his mother and her family in this country and so would not be lacking in love or emotional support were his father not permitted to move to Australia.  Further, the child has not to date had any physical contact with his father so he will not be suffering the loss of someone who is already a big part of his life if this visa is not granted.  Should the applicant choose to take her son to live in Lebanon with Mr Hawile, the standard of living there, although lower than Australia, is still reasonable.  Mr Hawile's extended family has already accepted Ms Fathers and so the child would receive love and family support in that country as well.  In any event, that matter is for her to decide.  Although the refusal of this visa would mean that the child may grow up without his father, the expectations of the Australian community outweigh his interests in this case.

8. The hardship suffered by the visa applicant would be the potential ending of his marriage and loss of contact with his son.  The hardship suffered by the applicant would again be the potential ending of her marriage or separation from her family if she moves to Lebanon.  Further, if she chooses to remain in Australia she will be raising her child as a sole parent which may limit her future career.

9. These secondary considerations do not, however, outweigh the primary considerations which are firmly weighted against the granting of the visa.  The particular crime is so abhorrent and of such a serious nature that the discretion should not be exercised in the visa applicant's favour, despite the interests of his child and the applicant.

10. For these reasons the Tribunal affirms the decision under review.  Australia has adopted and applied a policy of multiculturalism.  The implementation of that policy brings many benefits, but also is accompanied by a need for judgments to be made on questions of cultural tolerance levels.  As I understand the values of the Australian community, its first requirement of our incoming citizens is that they be encouraged to learn and adapt to our way of life and to our standards.  I do not believe for one moment that the standards of the Australian community will ever accept as justifiable for any reason at all that a husband or father or brother has a right to extract physical retribution against, let alone the impelled death of, a woman for reasons of the kind found by the Lebanese Criminal Court to have motivated Mr Hawile's crime.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  23.11.98, 16.12.98, 13.8.99
Date of Decision  7.4.00
Counsel for the Applicant         
Representative for Applicant   Applicant appeared in person
Counsel for the Respondent    Mr R Gregg, Departmental Advocate
Solicitor for the Respondent