Gerges and Minister for Immigration and Multicultural and Indigenous Affairs
[2001] AATA 1049
•21 December 2001
CATCHWORDS – IMMIGRATION – character test – whether applicant not of good character – whether made false statements in support of application for protection visa – decision set aside
Migration Act 1958 ss. 20, 31, 234, 499, 501
Migration Regulations Schedule 2, Schedule 4 clause 4001
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 10910, 2 May, 1996)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Selvadurai v Minister for Immigration and Ethnic Affairs, Federal Court, 18 May, 1994, 301/94
DECISION AND REASONS FOR DECISION [2001] AATA 1049
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2001/761
GENERAL ADMINISTRATIVE DIVISION )
ReFADIA GERGES
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 21 December, 2001
Place: Melbourne
Decision:The Tribunal:
1.sets aside the decision of the respondent dated 12 June, 2001; and
2.substitute a decision that:
(1)the applicant passes the good character test; and
(2)a Subclass 309 visa should not be refused on the basis that the applicant does not pass the character test.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 22 June, 2001, the applicant, Mrs Fadia Gerges, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") dated 12 June, 2001. In that decision, the delegate refused to grant Mrs Gerges' husband, Mr Barbar Gerges, a Subclass 309 visa for permanent entry to Australia on the basis that he did not meet the public interest criteria in clause 4001 of Schedule 4 of the Migration Regulations ("the Regulations") and, in particular, that he did not pass the character test.
At the hearing, Mrs Gerges represented herself with the assistance of Mr Salah Abdo and the Minister was represented by his solicitor, Mr Brereton. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with various documents and references attached to letters written by Mrs Gerges' sister, Mrs Jacqueline Acquaro, and dated 25 July, 2001 and 8 August, 2001. Mrs Gerges gave oral evidence in support of her case together with Mr Abdo (Mr Gerges' social worker), Mr Michael Chahine and Mr George Maroun and Mrs Sabah Maroun (Mrs Gerges' parents). No evidence was led on behalf of the Minister.
THE ISSUES
The first issue is whether Mr Gerges passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised not to refuse to grant him the visa.
BACKGROUND
On the basis of the oral and written evidence, I have made a number of findings of fact that I will set out in this section. I find that Mr Gerges was born on 8 December, 1970 at Dar Baachtar in El Koura in Lebanon and is now 31 years of age. He attended primary and secondary schools in Dar Baachtar and completed 12 years of education. Since leaving school, he has not obtained any further formal qualifications but has worked as an automotive electrician and as a tiler.
Mr Gerges' first wife, Ms Tania Srour, is also his cousin. Mr Gerges arrived in Australia on 7 January, 1996 on a Subclass 300 (Prospective Marriage) visa. He and Ms Srour married on 22 May, 1996. On 28 June, 1996, Mr Gerges applied for a Subclass 831 (Prospective Marriage Spouse) visa. His application for that visa was refused as his marriage subsequently broke down. Mr Gerges found that his wife in Australia was a completely different person from the person he had met overseas and had no respect for her husband or commitment to a shared life. They were divorced on 10 March, 1999.
Mr and Mrs Gerges met each other at a christening some time in 1999. Mrs Gerges was born in Australia on 2 April, 1979 and is now 22 years of age. On 4 May, 1999, he applied for a Protection Visa. He and his wife married on 6 June, 1999 and Mrs Gerges was aware of his application. That application for a Protection Visa was refused on 30 August, 1999. The delegate accepted that Mr Gerges had a subjective fear of harm but that his fear is not based on one of the grounds set out in the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees done at New York on 31 January, 1967 ("Refugees Convention"). Mr Gerges then lodged an application for the decision to be reviewed by the Refugee Review Tribunal ("RRT") but withdrew his application on 6 October, 2000. Mr and Mrs Gerges left Australia to travel to Lebanon on 19 October, 2000. On 15 December, 2000, Mr Gerges lodged an application for a Subclass 309 (Spouse (Provisional)) visa. He was sponsored by his wife. That was refused and the refusal is now under review.
THE EVIDENCE
The death of Mr Gerges' father and brother, Karam, and attack on his brother, George
Mr Gerges
In a statement made in support of his application for a protection visa and translated by Mr Abdo, Mr Gerges set out the events that led to the death of his father and brother:
"My story in details is very broad and painful. It is beyond literal description. There is big difference between inscribing a story and living constantly with nightmares of getting killed or tortured at any moment.
I was 5 years of age, my family consisted of father, mother, five brothers and four sisters. I am the youngest amongst al my siblings. My father was kidnapped from our home by well known and powerful members of the "MARADAH" faction residing in my village. This political party was originally founded by a former Lebanese president "Mr Soulaiman Franjiah".
Those members belong to a well established family in my region, the father is lawyer, his first son is General Practitioner with good reputation in the medial society, his second son is one of the Lebanese Army's commanders responsible for large battalion. They are rich, powerful, well known and well protected by the former president of Lebanon "Mr Soulaiman Franjiah".
The former president of Lebanon, currently running his own political party, advised the above commander that a conspiracy against the government is under plan (in 1975) by the Syrian National Party. If this party takes over my government we will be defeated any you may lose your ranking accordingly. Therefore, we must execute and ravage all its key leaders and members in order to ensure that their leadership infrastructure is destroyed and their aim of securing power in Lebanon is failed. I command you to act swiftly, should you succeed in you cleansing mission with all the soldiers under your command, I will ensure you the highest rank of military promotion and a much broad regions to be under your command. As you are aware, my previous position as the former president of Lebanon still in force. My contacts within the Lebanese army and your superiors still intact and I can influence any commander to do what I ask of him.
The Commander "Mr Nahra El Khoury/El Shalouhi" declared his secret war against all members of the SNP in our region.
My father was a key member of this party during that time and was the first person to be captured with about ten men and few ladies all of whom belong to the SNP. They were placed in local prison under the command of Lieutenant Mr "Nahra".
The government facilitated their capture and ordered Mr Nahra to keep them under surveillance until the end of the civil war to ensure that they will not participate in any uprising against the government.
With this authority over them, they were badly tortured during their imprisonment and were later died suffering from sever torture. The government did not know anything about this imprisonment and their day and night endurance.
Once, they came with many cars, surrounded our house and brought my father to the door of our house and told him "you've got ten minutes to change your close and see your family", the waited outside the house. When my father entered the house we all shouted: "dad came" "dad came" He hugged us all and started kissing us. Moments later, he called my mother and went inside the bedroom. I looked through the door which was left slightly open and saw my dad changing his close while talking to my afraid mother, I could not understand what he was saying as it sounded like a murmur to me. The only word I understood when my mother shouted "oh my god" and that when he removed his shirt. Then I put my head through the door opening and saw the mark of lashes from the top of his neck to his waist. His back was like a map full of bleeding strike. My father told my mum to lower her voice as she could not help her self crying and screaming. During this time they yelled from outside and told him to get out. As he was leaving, we all cried and got hold of him, my dad cried for the first time and said "my dear children, look after your mum and look after yourselves", as he left home the grabbed him with force, pushed him in one car and took off with speed.
We tried to take some food to my dad's cell after we knew where they were imprisoned, but we were denied entry. The guards told us to go home and not to return to this area.
They sensed that people started to know about their whereabouts and did not know what to do with the many capture people. Mr Nahra's brother, a canny officer, said to his family, "I have a solution to your worry, come with me". He brought some Muslim officers, went to the jail and put all prisoners in the army trucks and drove them to the nearby forest which is well known by the name of "EL Hamraa". Designated area away from our village. Nahra's brother "Mr Fouad" ordered his officers to put the cuffed prisoners in individual bags and to tight it. At this point of time, my dad knew that this is the end of their life. He started screaming with others begging them to leave them in the wood without killing them but no one listened. People from the villages around the forest area her the screaming and started to yell across the fields. Fouad and his officers panicked and started to hit the prisoners with the bottom of their riffles until the broke their bones. Then they threw petrol on them and set them alite and threw them between the olives trees. When Fouad was asked about the prisoners he told them what he did and said that this is the only way to control our region. We want people to fear us so we can be in full control. Lieutenant Nahra was later promoted from the former Lebanese president and was given huge financial reward. When formal complaints were made later, Nahra told the authority that those who threatened the government were placed in prison and were later died as a result of the civil war.
The story was well known in our region, knowledge of this kind caused serious concern for those who committed the massacre. They decided to start eliminating the older children of those who were killed. They have killed many youth indeed. My brother had to escape to Beirut and was forced to join a political party called the "Falange" in order to safeguard his life. The Falange had their own problems and were later renamed the Lebanese forces.
Months later, a new war erupted between El Maradah party and the Lebanese forces due nomination to the presidency of Lebanon. Many killings have occurred as a result and the people of our region were divided in two groups pro and anti El Marada. Lieutenant Nahra was killed after the plantation of explosives in his airplane. His family felt so sad as they were expecting him to be the next president of Lebanon. As a result of this accident, the Lieutenant strong family members started to target the children of those who they have killed as they believe that they are the cause of Nahra's death. The followed my older brother "George" and killed him in his party's centre. My third brother "Karam" joined the Lebanese Army. Eight years ago, they planted explosive in his place of work and caused him sever injuries. He had broken arm and legs, deep laceration in his stomach and severe cut to the rest of his body. He stayed in the intensive care unit for three months until his situation became stable but he still suffers from many abnormalities.
The lieutenant family went to France until things calms down. Many people felt at ease. Years later they came back with more money and more power.
…" (T documents, pages 86-89)
Mr Chahine
Mr Chahine said that he first met his wife when she travelled to Europe for a holiday. When she returned to Australia, they kept in touch by telephone and became engaged three months later. He followed her to Australia in 1994. Mr Chahine said that he used to know Mr Gerges in Dar Baachtar. In 1976, both his father and Mr Gerges' father and their brothers were killed by the Maradah together with two other people.
Situation in Lebanon
Mr Gerges
In the statement, Mr Gerges set out the situation in Lebanon as he understood it in 1999:
"Most recently, an election was conducted across Lebanon to elect Mayors to the villages in Lebanon. The Lieutenant family tried its best to win in the election but failed. A new Mayor has been elected in our village Mr Ghawi El Faoui. The new Mayor appointed my brother as a by-law-officer. Since his appointment, the Lieutenant family has been causing lots of problems to my brother and threatens him by saying "we will kill you and kill the rest of your family as we killed your father". My brother is taking them to court, I am sure that the court case will not proceed and I am sure they will be found innocent. Key members of the Lebanese government still support this family and their wealth enable them to bribe any one who serves their desires.
…
Throughout my presence in Australia, I maintained my close contacts with my family in order to ensure that they are still safe. The have told me that a person from our village has returned to Lebanon from overseas and started to unveil the story surrounding the killing of my father and his friends.Someone from the village told the lieutenant's family about this person and they send a person to his house and shot him three times testicles. No body knew who shot him and the case is still under investigation. I am sure that you are aware that the authorities in Lebanon is gaining control, however this particular family has special privileges. When ever allegation is made against them, no officials are allowed to question their authorities. They will continue to hunt any one who tries to come near them or who talks about them.
The victim of the above incident is so scared about his life and has said to my family that everyone ought to leave for good if they can. There is no security with this strong family around. They went to our church, placed a pistol on the priest head and told him to tell everybody that the people of whom they have murdered have died naturally. They went to the Mayor of our village and forced him to issued death certificates to all those who they have killed declaring their natural death. The government support the strong and need plenty of time to ensure total just in Lebanon.
…
El Marada's party, the party of the lieutenant family. It is lead by the son of the former president of Lebanon 'Mr Franjieh'. There are big in number and they employ special people who constantly annoy my family members and threat them continuously. The are forcing my family member to do things that the do not wish to do on their own will. If we do not comply with their commands, death is awaiting. The priest and the Mayor are also fearful and no one is prepare to fight or voice his opinion against a strong party. We belief in the teaching of the SNP and we will always be viewed as their enemies. The government can not protect me, my family and or any other members of the SNP.The Shalouhy-EL Koury family is a very strong family, they have weapon hidden in their houses, knowingly it is illegal. No one dears to make any allegation against them. However, they are fearful that the children of those who they have killed will return and revenge for their parents. They are very watchful for those who returns to Lebanon. My deceased brother has been branded by them as a killer knowingly that my father and brother were killed by them.
…" (T documents, pages 89-90)
In giving oral evidence, Mr Gerges confirmed the facts surrounding the death of his father and of his brother. He said that his brother Elias was killed and not George. Mr Abdo said that it was his mistake in translating the document. Mr Gerges said that those who killed his father and brother are still in control but are not as powerful as they have been in the past.
Mrs Gerges
Mrs Gerges said that her mother in law had telephoned her husband and said that she wanted to meet his new bride. Her husband had not wanted to go back but his mother told him that things had calmed down in Lebanon. Mrs Gerges said that she was very scared in Dar Baachtar and that her husband did not like either of them to leave his mother's home very much. Mrs Gerges said that her husband was very scared and would be very secretive about what he was doing. He was scared and people watched where he went, she said. People in Dar Baachtar were also scared. They told her that her husband was lucky to meet a nice girl in Australia and that he was able to get on with his life in Australia. Mr Gerges' mother was also scared for her son, Mrs Gerges said. She was scared that her son would be a target. Mrs Gerges said that there were no particular incidents that happened while she was in Lebanon but just that he was scared.
Mr Abdo
Mr Abdo came to Australia in 1976 from Lebanon. At that time, he said, people were killing each other in the street in Lebanon. Mr Gerges' father had died because of his belief in the Syrian National Party. Both Mr Gerges' father and brother were killed and another of his brothers was wounded and left with disabilities. Lebanon, he said, still has so many problems. Many people were killed and many others want to take revenge. That continued until 1992 when there was a change of President. The government in Lebanon is stronger now than it was before. Bad people cannot do what they did before but people who support the Syrian National Party are still scared because they do not know what will happen.
Mr Abdo also said that there must be a distinction drawn between the situation in Lebanon at the national level and the situation at the regional level. The people in the villages still attack each other. At the national level, the President can change any law that he wants and play with the law at will.
Mr Maroun
Mr Maroun said that he grew up in Dar Baachtar but came to Australia in 1966. He could not comment on the situation in Lebanon after he left. When he visited Lebanon to see his daughter's mother in law, he said that people tried to talk to him about what had happened to his son in law's father but he avoided talking about such matters.
Mr Chahine
Mr Chahine said that he returned to Lebanon in 1992 when his older brother was sick but he did not feel safe. People watched where he was going and what he was doing. People are scared when they see people who have killed others still walking the streets and praying in the Churches.
Mr Gerges' safety in Lebanon
Mr Gerges
In his statement written to support his application for a Protection Visa, Mr Gerges said of his own safety:
"I am so fearful that I will be killed and or tortured if I return to Lebanon because they know that I am aware of the actual killings. The children of the massacre victims have ran to USA, Brazil, France and Australia. I am in constant contact with all those who are in Australia.
…
My father and brother have been killed, my other brother have been badly injured and left incapacitated for the rest of his life, my other brother continue to receive threats from them. I am to be targeted and I am 100% sure that I am on their killing list if I return to Lebanon. They will never let the children of those they have killed rest. They will hunt them one by one and try to get rid of them as the threat their power in Lebanon. Their party is influential and strong in Lebanon.
…
My government is in the state of regaining control. It fails to protect its MPs and can not offer assistance to individuals like me. My life is in danger if I return, I am to be hunted and killed. This is my belief." (T documents, pages 90-91)
Mr Gerges said that he maintained contact with his family in Lebanon. He had applied for a protection visa but then his mother asked him to visit. He felt so insecure about going back, he said. He had not known what to do. As he was so frustrated, he went to the Lebanese Welfare and asked what he should do. He explained to them his whole story and asked what he should do.
Mrs Gerges
Mrs Gerges said that she was always very scared when she lived in Lebanon. They had gone to Lebanon when her husband's mother asked to see his new bride and said that things had settled down.
The lodgement of the protection visa
Mr Gerges
Mr Gerges said that he had not applied for the protection visa at an earlier time as he had not been aware that he could do so. He had withdrawn his application to the RRT as he had promised the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") that he would return to Lebanon if things were getting better. When he lodged his application, he was told by the Department that it would be processed in Australia. He said that he has now been interviewed in Beirut and is now scared that it will become known in Lebanon that he has applied for a protection visa.
Mr Abdo
Mr Abdo said that Mr Gerges went to the office of Lebanese Welfare and told them about his mother and about his visa being refused on the breakdown of his marriage. Members of staff at Lebanese Welfare told him that they thought that he met the criteria as a refugee. They asked him why he did not apply on that basis.
Effect of Mr Gerges' not being permitted to return to Australia
Mr and Mrs Maroun
Mrs Maroun said that her son in law is a good person who helps others and is very generous. She said that he loves her daughter and spoils and indulges her. Mrs Maroun said that her daughter is suffering because of the separation from her husband. Her daughter stays with her rather than in her own family home as she is scared to be alone.
Mr Maroun said that he has helped his daughter and son in law a lot and given them a house to live in. His son in law is a very nice person and he loves him too much, he said. His daughter is always asking for her husband and is always talking to him on the telephone.
CONSIDERATION
Framework of Act
Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Subclass 309 visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate's decision was made and of this review, criterion 4001 provided that:
"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."
Section 501(1) of the Act provides that:
"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:
"For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test."
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act; Direction – Visa Refusal and Cancellation under section 501 – No. 21 ("the Direction"). Those directions were in force at the time that the delegate made his decision in relation to Mr Gerges.
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."
Does Mr Gerges pass the character test?
In this case, the focus is upon Mr Gerges' past and present general conduct as set out in s. 501(6)(c)(ii) rather than upon the other criteria in that provision. That requires a consideration of what is meant by the expression "good character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
"`Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)
After considering that structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
"These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 10910, 2 May, 1996). In Prasad, Deputy President McDonald added:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (paragraph 7)
What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:
"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 (Unreported, Spender, Drummond and Mansfield JJ, 14 September, 1999). Speaking generally of s. 501, the Full Court said that it:
"… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the Tribunal's decision on this ground, so it is unnecessary to pursue this question." (paragraphs 8 and 24)
The Direction states that decision-makers should consider the matters set out in paragraphs 1.9 to 1.11. Where there are no countervailing factors, the Direction states that a person does not pass the character test. Among the matters that must be considered are:
"(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement." (paragraph 1.9(b))
Does Mr Gerges pass the character test?
At the heart of the Minister's case is his contention that Mr Gerges' visa application appears to be at best exaggerated or, at worst, fabricated. As such, it is a clear indication that Mr Gerges is willing to provide false and misleading information to the Department in order to enter and remain here. This amounts to an offence pursuant to s. 234 of the Act. The evidence pointing to this conclusion, it is contended, is the lodgement date of the application for the protection visa some three years after he first arrived, it was lodged only after his marriage had broken down and he could no longer rely on that relationship to support a visa and that he allegedly told the delegate that he had not applied earlier as he "did not need it until then". Mr Gerges was not questioned at the hearing about this statement. In particular, he was not asked whether he had indeed made that statement to the delegate or, if he had, why he said it.
I find that Mr Gerges did not apply for a protection visa either before he arrived in Australia in January, 1996 or shortly after his arrival. He did not do so until after his first marriage had disintegrated and he was unable to rely upon that relationship to support his application for a visa. Of these things there can be no question. They do not, however, mean that he made false claims when he lodged an application for a protection visa.
Certainly, in some contexts, there can be questions raised by a person's delaying to make claims that he or she has been persecuted or that he or she is afraid for his or her safety in another country. It is important to bear such questions in mind. As Heerey J said in Selvadurai v Minister for Immigration and Ethnic Affairs, Federal Court, 18 May, 1994, 301/94:
"The applicant complained of the Tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuiness, or at least the depth, of the applicant's alleged fear of persecution. …" (paragraph 11(v))
It seems to me, though, that the argument in this case is answered in Mr Gerges' favour. While I find that Mr Gerges did not immediately make claims that he was afraid in Lebanon and afraid to return to it, it was the case that he did not need to. He is alleged to have said as much to the delegate. If he did, then taken in context, that statement does not mean that he did not do so earlier because it was not a truthful statement either earlier or at the time that it was made. On the basis of his evidence, I find that he did not need to because he had married an Australian citizen. There is no evidence to suggest that the marriage was anything other than a genuine marriage and I so find. Relying on his genuine marriage to found his application for a visa, he did not need to apply on any other grounds. It was only when it broke down that he needed to seek advice and that he needed to see whether there was any other way he could obtain a visa. Again on the basis of his evidence, I find that he sought advice from Lebanese Welfare at that stage. When he sought that advice, I am satisfied that it was the first time that he spoke to them of his family's experiences and of his fears and it was the first time that he was advised that his experiences could found an application for a protection visa. His experience was consistent with that of Mr Chahine who said that he had not thought of applying for refugee status before or after he met the girl who was to become his wife and he travelled to Australia. When viewed in context, I am satisfied that the delay in Mr Gerges' application does not detract from its genuineness. The delay in its lodgement is consistent with his particular circumstances.
That he did not satisfy the RRT that he met that definition does not mean that his claim was based on false statements. Indeed, the RRT accepted that Mr Gerges has a subjective fear of harm but found that his fear is not based on one of the Refugee Convention grounds. I also accept that Mr Gerges has a subjective fear of harm to himself should he remain in Lebanon. His fear arises from the murder of his father and brother and his belief that those connected with these murders wish to kill the children of their victims. My findings are based on his evidence which was given both orally and in writing. The two versions were consistent and were supported by Mr Chahine and by Mr Abdo. Mr Chahine's evidence was particularly compelling as his father and uncle were also killed at the same time as Mr Gerges' father and brother and he, like Mr Gerges, was a small boy living at home at the time. It is also compelling because he has returned to Lebanon and has experienced the feelings of fear now said by Mr Gerges to be felt by him. Mr Abdo also confirmed the atmosphere of fear. His evidence also pointed to the less stable situation in the villages of Lebanon when compared with Beirut.
Even though his claim was ultimately unsuccessful, I am satisfied that Mr Gerges made his claim for a protection visa based on what was accurate information and genuine fears for his safety. He has not attempted to mislead the Department or the Australian community in any way.
I have also had regard to the character references submitted in relation to Mr Gerges but which I have not summarised. They spoke highly of his honesty and integrity and of his caring and loving nature as did those who gave oral evidence. On the basis of that evidence and in view of the findings I have already made and having regard to all of his conduct both past and present, I am satisfied that Mr Gerges is a person who is of good character. He does not fall within ss. 501(6)(a) to (d) and so passes the character test set out in that section. It follows that the question of exercising a discretion does not become relevant.
For the reasons I have given I:
1.set aside the decision of the respondent dated 12 June, 2001; and
2.substitute a decision that:
(1)the applicant passes the good character test; and
(2)a Subclass 309 visa should not be refused on the basis that the applicant does not pass the character test.
I certify that the forty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: .....................................…….........
Clancy Riddiford AssociateDates of Hearing 17 December, 2001
Date of Decision 21 December, 2001
For the Applicant The applicant with the assistance of Mr Abdo
Counsel for the Respondent Mr Brereton
Solicitor for the Respondent Australian Government Solicitor
0
2
0