Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 648

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AAT 441

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1290

GENERAL ADMINISTRATIVE DIVISION		)
Re		AMAL IBRAHIM

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date17 May 2005

PlaceSydney

Decision The decision under review is set aside.  The application is remitted to the Respondent with a direction that Mr El Etr is not a person who is not of good character.

[SGD] R N J Purvis Q.C.
  Deputy President

CATCHWORDS

IMMIGRATION - spouse (provisional) subclass 309 visa – false and misleading information in protection visa application – did not make nor responsible for the false and misleading information – assurances from relative relied upon – reliance justified - no intention to breach conditions of visa - not a person who is not of good character – exercise of discretion not necessary, but discussed - best interests of partner’s children and little risk of recidivism – decision set aside

Migration Act 1958 sections 234, 235 and 501

Ministerial Direction 21

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136

Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648

Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766

McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805

Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

REASONS FOR DECISION

17 May 2005            The Hon R N J Purvis Q.C., Deputy President

the application

1.      This is an application by Ms Amal Ibrahim (“the Applicant”) seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 30 September 2004 refusing to grant a spouse (provisional) subclass 309 visa to her husband Mr Hicham El Etr.  The refusal was on the ground that Mr El Etr did not pass the character test.  The discretion available to the Respondent was not exercised in his favour.

2.      In the Respondent’s statement of reasons for the refusal decision it was stated:

“…

6. Based on the above information I believe the applicant was aware that he was illegally living and working in Australia for the majority of the period between 1999 and 2003…However, despite the clear expiry date linked to a decision on his application the applicant failed to approach the Department at any time…

…

8…Mr El Etr admitted to having knowingly illegally resided and worked in Australia over a period of four years…This represents a significant and deliberate abuse of Australia’s migration program.

9. The applicant’s conduct indicates he was prepared to provide false and misleading information to engage the Australian Protection Visa system and the Australian community’s generosity for refugees…

10. Ms Ibrahim has provided evidence that she suffers from depression and stress.  However, she has not provided any evidence as to why she could not reside in Lebanon with her husband should his application be refused.

…

15. It is clear that Mr El Etr’s protection claims to DIMIA were based on a falsehood.  Furthermore I believe he attempted to mislead DIMIA officials by claiming he was not aware of his unlawful status in Australia…”

the issues

3.      The primary issues for determination in this application are:

· Whether Mr El Etr passes the character test as defined by section 501 (6) of the Migration Act 1958 (“the Act”);

· If Mr El Etr does not pass the character test whether or not the Tribunal should exercise its discretion to refuse his application for a spouse (provisional) subclass 309 visa pursuant to section 501 (1) of the Act.

the hearing

4.      At the hearing of the application, the Applicant was assisted in presenting her case by Mr Toufic Laba Sarkis J.P., a Christian Executive Member of the Maronite Catholic Society.  The Respondent was represented by Mr Avinesh Chand, a solicitor employed by Clayton Utz Lawyers.

5. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T36.  Written material tendered by the Applicant was also admitted and marked accordingly, namely:

Exhibit No	Description	Date
A	Letter from Mr Toufic Laba Sarkis, JP to the Tribunal	19 April 2005
B	Medical certificate of Dr M A Chaudhary	18 March 2005
C	Medical certificate of Dr Magedy Hawi	18 April 2005
D	Medical certificate of Dr Bruce Richards	18 April 2005
C	Birth Certificates of Sarah, Sahar, Samah and Sajah Ibrahim

6.      Oral evidence was given by the Applicant and through an interpreter by Mr El Etr upon which they were each cross-examined.

chronology

7.      A chronology of events significant to an appreciation of this application is as follows:

1972, 14 September           Applicant born in Sydney

1976, 1 July  Mr El Etr born in Tripoli, Lebanon

1998, 11 August                  Mr El Etr enters Australia from Lebanon on an entertainers visa valid until 20 September 1998

1998, 19 August                  an application for a protection visa lodged in the name of Mr El Etr and a bridging visa is granted

1998, August  Mr El Etr starts working at ASKA Aluminium

1998, 28 September           protection visa application refused by the Minister’s delegate

1998, 16 October                Review sought by Refugee Review Tribunal of refusal of protection visa decision

1999, 19 May  Refugee Review Tribunal affirms decision to refuse protection visa

1999, 25 May application for Ministerial intervention pursuant to section 417 of the Act refused

1999, 23 June  Mr El Etr’s bridging visa ceases and he becomes an unlawful non-citizen

2001, 14 September           Applicant first meets Mr El Etr

2003, 17 May  Mr El Etr marries the Applicant

2003, 30 May  Mr El Etr granted a bridging visa

2003, 13 June  further bridging visa granted

2003, 28 June   Mr El Etr and the Applicant depart Australia

2003, 14 July  subclass 309 spouse visa application lodged

2004, 15 July  Mr El Etr interviewed by the Respondent in Lebanon

2004, 9 September             spouse visa application refused

legislation and direction

8.      The relevant statutory provisions are:

“MIGRATION ACT 1958

SECT 234

False papers etc.

(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;

(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or

(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

…

SECT 235

Offences in relation to work

(1) If:

(a) the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work that the non-citizen may do in Australia; and

(b) the non-citizen contravenes that condition;

the non-citizen commits an offence against this section.

…

(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.

…

SECT 501 Refusal or cancellation of visa on character grounds

…

(1)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.

…

(6)For the purposes of this section, a person does not pass the character test if:

…

(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…

…”

9.       The words “good character”” as used in section 501 of the Act “should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion” (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94).

10.     It is not necessary for there to be a continuance of the incidence of general conduct.  It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying the “character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).

11.     The Ministerial Direction sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test.  One factor to be taken into account is whether the Visa Applicant has shown contempt or disregard for the law including Immigration Law (para 1.9(a) and (b)).  Thus paragraph 1.9(b) requires consideration to be given to :

“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.”

12. If the Tribunal is not satisfied that the Visa Applicant passes the character test the issue for determination, as already indicated above, is whether the decision of the Respondent’s delegate be affirmed or set aside by exercise of the residual discretion under section 501(1) of the Act. In making this determination the Tribunal is to have regard to the above Direction and, as here relevant, to the following provisions:

“PART 2 – EXERCISING THE DISCRETION

2.1If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24.  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.

…”

13.     The three primary considerations that must be taken into account by decision-makers are the protection of the Australian community and members of it, the expectations of the Australian community and in all cases involving a parental relationship between the person under consideration and a child or children, the best interests of the child or children.

14. With reference to the protection of the Australian community, the Direction provides that the factors relevant to an assessment of the level of risk to the community of a non-citizen entering or continuing their stay include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism, and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as with the character issue, makes specific reference to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.

15.     The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648; Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766 and McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805). It is important to note the emphasis placed on “the observance of truth”.  It is conceivable that false documents and information may be provided without an applicant being aware of the inaccuracy, lack of correctness or falsity.  It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information to determine whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage.

16.     The Ministerial Direction 21 reads:

“2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a) the seriousness and nature of the conduct;

(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

a. The seriousness and nature of the conduct

2.6…

…

(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

...

b. likelihood that the conduct may be repeated (including any risk of recidivism)

2.10It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.  In particular, the following factors will be relevant to the assessment:

…

(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons

2.11General deterrence aims to deter other people from committing the same or a similar offence.  While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa.  The general deterrence factor may be relevant in a number of ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.

Expectations of the Australian community

2.12The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person.  Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.  Decision-makers should have due regard to the Government’s view in this respect.

…

Other considerations

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, it is appropriate that 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 may include:

(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

…

(b) genuine marriage to or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

·     in assessing the compassionate claims of the Australian partner…decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

…

(h) any evidence of rehabilitation and any recent good conduct;

…”

factual situatiion and findings of fact

17.     The Applicant whilst born in Australia travelled to Lebanon with her parents when she was 11 years of age.  Four years later when only 15 years old, she “eloped” and in December 1987 married her first husband.  After her marriage she remained in Lebanon for about six months and then returned to Australia from where she sponsored her husband’s migration to this country.  He arrived about 18 months later.  The Applicant and her husband lived together for about 12 years, she giving birth during that period of time to four daughters.  They were divorced in 2002, the children then remaining with the Applicant.  Seemingly orders of the Family Court of Australia are in place whereby the parents share responsibility for and contact with the children.

18.     In 1998 Mr El Etr then 22 years of age was sponsored by his uncle Mr Mohamad Basi to visit Australia with a band.  He obtained an entertainer’s visa valid to 20 September 1998.  He arrived on 11 August and lived with his uncle for an initial period of approximately three months of his stay in Australia.  Shortly after his arrival Mr El Etr expressed concern to his uncle that the period of his visa was due to expire in a few weeks.  The uncle told him “not to worry” and said that he would “do something about it”.  The visit to Australia was the first occasion Mr El Etr had left Lebanon and he had no fluency in English.  Within days the uncle arranged a meeting with himself, Mr El Etr and a “George”.  Mr El Etr handed over his passport and at the request of his uncle twice signed a blank form.  His signature was in Arabic.  The uncle “said sign here and I signed twice”.  Mr El Etr gave $2000 to his uncle to process the application.

19.     Mr El Etr says that he believed his uncle was applying on his behalf for permission for him to remain in Australia and obtain employment at the end of the band’s engagements.  The uncle told him that he could get him a two year visa and said “don’t worry. I have a business here”.  In fact the form Mr El Etr had signed was a protection visa application and at the time of the application being made he was granted a bridging visa.  The uncle returned the passport with the visa in it.

20.     The protection visa application was refused on 28 September 1998, as well it might be, as there were only minimal particulars in it of any grounds upon which Mr El Etr could rely to establish a refugee status. Unbeknown to Mr El Etr the uncle caused an appeal to the Refugee Review Tribunal to be lodged on 16 October 1998, which on 19 May 1999 was refused.  The uncle then caused a letter to be written seeking ministerial intervention, which was refused on 25 May 1999.  The bridging visa expired on 23 June 1999.

21.     Mr El Etr says and the Tribunal accepts that he was unaware of the conduct of his uncle. He trusted him.  He was not only unaware of the nature of the original application but of the applications made after the initial request was refused.  From time to time he expressed to his uncle concern about the period of his stay in Australia and on each occasion was told not to “worry”, his uncle saying words to the effect of “I would not harm you. I want to help you”. 

22.     Mr El Etr remained living with his uncle for about three months and then moved to live with another relative.  He obtained employment with ASKA Aluminium.  When he started work the employer asked for his passport.  He gave it to them. It was returned without adverse comment.  He applied for registration for income tax purposes and was given a number.  He duly paid tax on his wages.

23.     Mr El Etr met the Applicant on 14 September 2001.  The Applicant says that after her experiences with the first marriage, and she was not as yet divorced, she was not anxious to quickly form a new relationship.  She had the ongoing responsibility for the four daughters but says she found in Mr El Etr a caring person who endeavoured to assist her as best he could.  She was divorced in 2002 and married for the second time in May 2003.

24.     It was only two or three weeks before the wedding that Mr El Etr told his wife about his migration status.  In 2001 Mr El Etr had seen a Mr Mahammed Maarbani, “managing director” of a firm Worldwide Migration Services about his then visa.  He was not given any firm advice as Mr Maarbani did not have access to any relevant papers, but he did cause Mr El Etr to again query his uncle, the latter reiterating his earlier advice to his nephew to “not worry”.

25.     The Applicant and Mr El Etr made arrangements to visit an office of the Respondent and it was only then that Mr El Etr became aware of the protection visa application having been lodged, of the appeal, the subsequent request to the Minister and that he had been illegally in Australia working without permission.  A bridging visa was granted to him in order for him to arrange to leave Australia, which both he and the Applicant did on 28 June 2003. 

26.     The Applicant left her daughters with their father and lived with her husband and his parents in Lebanon for about six months.  She was distressed at being away from the children and became ill contracting hepatitis A.  She returned to Australia without her husband and forthwith made the present application.

health of the applicant

27.      I have earlier made mention of the distress and illness experienced by the Applicant when she was living in Lebanon.

28.     Dr Chaudhary, a consultant psychiatrist, in his report of 18 March 2005 speaks of the Applicant being under “tremendous pressure; she suffers from depression, anxiety symptoms” and is under medication.  Dr Hawi, her general practitioner, reports that since leaving her husband in Lebanon and returning to Australia, the Applicant “has been receiving intensive counselling and medication for her depression and anxiety” this being due to “her being away from her husband”.

character of mr el etr

29.     As has been said in many a decision of the Tribunal it is not in aid of advancing the case of an Applicant for a visa for that person to say that the false representations were made by another and he or she was not aware of the details.  An Applicant must usually take responsibility for acts of an agent even be it the applicant was not aware of the conduct of and representations made by the agent.  As was said in Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022 at paragraph 73:

“…a person cannot avoid his or her obligations to answer questions accurately and truthfully in immigration applications by merely asserting that reliance was placed upon someone else to provide this information and it is they who should be held solely responsible for any deficiencies. There are obviously varying degrees of inaccuracy and untruthfulness in the information that may appear in particular applications, but where an applicant simply signs a blank form and then leaves it to someone like a migration agent, lawyer or friend to fill in the details this would seem on the face of it to amount to reckless conduct. It is also conduct which would fit within the definition of being knowingly involved in the making of any subsequent false or misleading statement contained in such an application, even though it was not completed in person by the applicant. To hold otherwise would be to render largely purposeless much of the processing of immigration applications.”

30.     This assumption of responsibility for the acts of another extends to situations where the Applicant had an intention to mislead the Respondent or where the Applicant was prepared to allow another to do or say or write such things as were considered necessary to achieve a result to which the Applicant was knowingly not entitled.  However, where an Applicant believes that steps are to be taken to achieve a result which is legitimately thought to be attainable, the position may well be different.

31.     I am satisfied in the present matter that Mr El Etr believed that his uncle was on his behalf making application for him to remain in Australia for a further period and for him to be able to obtain employment.  I am satisfied that Mr El Etr believed that the bridging visa enabled him to work and remain in Australia.  I am satisfied that Mr El Etr accepted his uncle’s assurance at least up until the time he saw Mr Maarbani that he did not “need to worry”.  I am satisfied that Mr El Etr was genuinely apprehensive of the consequences that might follow his confronting the Respondent.

32.     There is no issue in this matter that Mr El Etr overstayed his visa and remained illegally in Australia from the expiration of his bridging visa in June 1999 up until May 2003.  There is no issue that he obtained employment when he was not entitled to do so.  But I am not satisfied that in remaining in Australia he intended to commit an offence.  I am satisfied that he believed he was entitled to work.

33.     I do not consider that the conduct of Mr El Etr displays a deficiency in his moral qualities.  He should, as was submitted on behalf of the Respondent, have contacted an officer of the Respondent and endeavoured to regularise his migration status, this when he had doubt as to whether he could stay in Australia and work.  He did not do so, initially by reason of his confidence in his uncle and later because of his concern for the possible consequences of his conduct.  This realisation, it is said, occurred after he saw Mr Maarbani and it was then that he should have contacted the authorities and not desisted “out of fear he would be given an answer he did not like”.  But in due course, even be it at the behest of his then wife, he did confront the Respondent and voluntarily left Australia in order to have the current application initiated.

34.     This lack of activity, it was submitted on behalf of the Respondent, constituted the “primary conduct leading to the failure to pass the character test”.  As I have indicated I do not accept this submission.  Mr El Etr was placed in a situation through no fault of his own.  There clearly is a responsibility on a visa holder who is aware of a migration problem to contact the Respondent and clarify the situation.  But in the present set of circumstances, Mr El Etr was persuaded by his uncle that he had no cause to worry about his residence status.  When he was alerted to a possible problem by Mr Maarbani, he did avoid discharging his obligation but with no guilty intent until the time of his marriage and the influence of the Applicant caused him to act otherwise and seek assistance and advice.

35.     I do not find that Mr El Etr is a person not of good character.  His character is not “so deficient as to show it is for the public good to refuse entry” (Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324).

discretion

36.     Being satisfied that Mr El Etr is not a person who is not of good character, it is unnecessary for me to consider the discretionary factors.  However, with respect to the primary decision-maker and the submissions put on behalf of the Respondent, I will consider the relevant factors and make findings in relation to them.

37.     It is true, as submitted on behalf of the Respondent, that making a false or misleading statement in connection with entry and stay in Australia is a very serious offence.  I am satisfied however, that Mr El Etr did not himself make, or did not authorise the making, or was not reckless in not caring whether there was a making of false and misleading statements in a protection visa application.  It may be said that he was neglectful in signing a document that contained no material particulars in it.  But in my view it was not unreasonable for him to rely upon his uncle under the then circumstances. 

38.     It is also true that Mr El Etr performed work in Australia that contravened a condition of his visa. I am satisfied however, that he did not intend to act in breach of the Migration Legislation and that he believed, having been so informed by his uncle, that he was entitled to so work.  Having obtained his tax file number and paying income tax, together with the acceptance of his passport by his employer, gave him confidence to maintain his employment.  I am satisfied on the evidence before the Tribunal that there is little likelihood of Mr El Etr engaging in like conduct to that referred to above in the future.  He did not attempt himself to mislead Australian migration officers over an extended period of time.  Further, the facts of his situation are peculiar to him and a refusal to grant a visa is not likely to prevent or discourage similar conduct by other persons.  As already found, he relied upon the relationship existing between himself and his relative and was given a false sense of confidence and certainty as to the position in which he found himself.  I am not satisfied that the protection of the Australian community would require the decision to refuse the visa application being affirmed.

39.     Nor do I consider that Mr El Etr has demonstrated disrespect for Australian migration laws on more than one occasion.  He did act in breach of the law by overstaying his visa and working without permission.  He did not make, nor do I find him responsible for, the making of false and misleading statements in an attempt to gain entry to Australia by lodging a false protection visa application.  I am satisfied however, that any breach of migration laws committed by Mr El Etr was not engaged in or performed with the requisite guilty intent.

40.     The Applicant as the mother of four daughters has experienced significant distress as a consequence of her husband being unable to obtain a visa to enter Australia.  For a short period after the marriage she went with her husband to Lebanon, leaving the children with their father.  She suffered greatly as a result.  The children likewise were without their mother.  In the event of a visa being refused to Mr El Etr it is unlikely that the Applicant will leave Australia and permanently reside with him in Lebanon.  She has a deep attachment to the children.  She shares the care of them with their father.   The state of health recently experienced by the Applicant is such as to affect the children and affect their relationship with their mother.  If a visa should be refused the Applicant would suffer and her ill health would reflect upon the mother-daughters relationship.

41.     I am satisfied that the best of interests of the four daughters would be served if their mother’s husband, Mr El Etr, be permitted to enter Australia and reside with his wife.

42.     I am satisfied that the marriage between the Applicant and Mr El Etr is genuine.  I am further satisfied that the Applicant would suffer emotional hardship if the visa is refused and that such hardship will be significant.  If she should relocate to Lebanon she would again experience the anxiety and trauma suffered by her in 2003 by reason of being away from her daughters.  If she remains in Australia without her husband she will only experience aggravation of her present medical and psychiatric condition.

43.     Mr El Etr has severed the connection with the uncle who so misled him and has not evidenced a close relationship with any other member of his family living in Australia.

44.     Mr El Etr should be allowed to enter Australia, live with his wife and assist where necessary in the care of her daughters.  He is an experienced aluminium worker and can contribute to the welfare of the country.  He will be on a provisional visa for two years.

45.     Even if his conduct had been found to be such as to characterise him as a person not of good character, which it does not, the discretionary factors would have weighed heavily in his favour.

46.     For these reasons the decision under review is set aside.  The application is remitted to the Respondent with a direction that Mr El Etr is not a person who is not of good character.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed:         A. Garcia            .....................................................................................

Associate

Date/s of Hearing  29 April 2005
Date of Decision  17 May 2005
For the Applicant  Mr Sarkis              
Solicitor for the Respondent     Mr A Chand