Hammoud and Minister for Immigration and Multicultural and Indige Nous Affairs

[2003] AATA 562

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 562

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/1286

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MALAKE HAMMOUD

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date16 June 2003

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd The Hon C R Wright QC)

Deputy President

CATCHWORDS

Immigration – character – visa applicant making fraudulent protection visa application – whether marriage and resultant family situation should cause discretion to be exercised in his favour.

Migration Act 1958 – s501.

Re Prasad and Minister for Immigration and Ethnic Affairs (AATA 9822, 7 November 1994).

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.

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

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321.

Re Ly and Minister for Immigration and Multicultural Affairs (2000) AATA 339.

Re Chheang and Minister for Immigration and Multicultural and Indigenous Affairs (2003) AATA 254

REASONS FOR DECISION

16 June 2003 The Hon C R Wright QC., (Deputy President)  

The application

1.      The visa applicant, aged 41 years, is the husband of the review applicant, aged 33 years.   She is an Australian citizen of Lebanese ethnicity.   He is a Lebanese national seeking a subclass 309 spouse visa.   His application was rejected by the Minister’s delegate on 19 November 2002.

2.      On 27 November 2002, the visa applicant sought review of this decision.   A hearing of that application took place before the Tribunal on 4 April 2003.   The visa applicant was represented by his wife who was ably assisted by Samuel Hassoun, her brother-in-law.   The respondent was represented by Ms Greaves of counsel.    Oral evidence was given by the review applicant and Mr Hassoun.  Mohamed El  Saj, the visa applicant gave evidence by telephone link from Lebanon with the aid of an interpreter.   The respondent called no witnesses.  Documentary evidence was also received:

Exhibit “A” – Section 37 (“T”) documents

Exhibit “B” – Letter to AAT from Islamic Society of Victoria.

Exhibit “C” – Letter from visa applicant to Migration Review Tribunal.

Exhibit “D” -   Letter to visa applicant from Frank Sabelberg.

Exhibit “E” – Letter to visa applicant from Frank Sabelberg.

3.      After concluding the hearing on 4 April and reserving my decision, I received a letter from the review applicant’s eldest son.   Partly as a result of this and partly as a result of other issues, which I thought required further investigation, I arranged for a second hearing to occur by way of telephone link on 8 May 2003.   At that hearing I received evidence from Mr Rodney Glen Strong, Mr Riad Khodr and Mohamed Osman.   Further documentary evidence was also received:

Exhibit “F” – Letter from Mohamed Osman (undated).

Exhibit “G” – Australian Embassy, Beirut report on condition in Lebanon.

Exhibit “H” – Letter from Campbell Field Heights Primary School (6.5.03).

Exhibit “I” – Letter from Maarefa School (6.5.03).

History

4.      The visa applicant first arrived in Australia on 24 January 1995 as the holder of a visitor’s visa, which authorised his stay in Australia for a period of 3 months.   He took up residence with his sister.

5.      Shortly before the expiration of his visa on 18 April 1995 he applied for a Protection visa, asserting that, were he obliged to return to Lebanon he would face mistreatment or death, due to fierce antagonism from Syrians to his political activities.  This application was refused by the Minister’s delegate on 19 September 1995.

6.      On 18 October 1995 the visa applicant sought review of this decision by the Refugee Review Tribunal (RRT).   The visa applicant attended the RRT hearing and gave evidence assisted by an Arabic interpreter.     On 16 December 1996 in a comprehensive written decision, the RRT affirmed the decision of the Minister’s delegate.  The RRT noted in its decision that the visa applicant’s case was substantially different from his original application.   Much of the visa applicant’s evidence was adjudged by the RRT to be lacking credibility.   That this assessment of the visa applicant’s untruthfulness was correct is confirmed by the contents of Exhibit “C”, and the visa applicant’s acknowledgment that he had lied to the RRT during his evidence to the AAT.     Exhibit “C” (a certified translation of the applicant’s letter) reads in part as follows:

“Firstly, I the undersigned, Mohammad Ahmad Alsaj, declare and affirm, that I did not tell the truth in my application to the Department of Immigration in Australia, because I did not understand English and I was unfamiliar with the law in this country, a country which I greatly respect.   I was mislead by a number of people, and I was told different things by different people, therefore I was unable to take the right decision.

Secondly, I am deeply sorry and I would like to apologize for misleading this department, and I hope you will accept my apologies.   I am deeply remorseful for what I have said.”

7.      In his evidence to this Tribunal, the applicant acknowledged his admission of untruthfulness and misleading conduct in this document and again asserted that this has resulted from his lack of knowledge of our law and language.   He also apologised profusely.

8.      It was put to the visa applicant that he refused to leave Australia within 28 days of receipt of the RRT’s decision, but he maintained that he had never received notification that he was obliged to depart from this country.

9. The visa applicant sought direct ministerial intervention on humanitarian grounds under s417(1) of the Migration Act 1958 (“the Act”), but this application failed to meet ministerial guidelines and was rejected on 9 January 1997.

10.     In 1998, the visa applicant met the review applicant.   The review applicant had previously been married and had 2 young sons.   The marriage ended in divorce in 1996 and the review applicant retained custody of the 2 boys, Mohamed now aged 15 and Zead now aged 11.  Neither they nor their mother retain any contact or relationship with their father who, according to the evidence, is a selfish and violent individual now living in Sydney with a new wife and family.

11.     In 1999, the visa applicant and review applicant became engaged, and on 24 June 2000 they participated in a Muslim marriage ceremony.   Their marriage according to Australian law took place at Preston on 16 June 2001.   Thereafter they cohabited as man and wife until 5 June 2002 when the visa applicant’s monitored departure from Australia took place.    This appears to have been a consequence of legal advice given to the visa applicant after he sought assistance to obtain a spouse visa.

12.     The visa applicant returned to Lebanon where he now lives with his father, his sister and her family.   He also has 2 brothers who are married and live in Lebanon.  On 29 June 2002, the visa applicant applied for a spouse visa to enable him to return to Australia.

13.     Before the visa applicant departed from Australia his wife gave birth to their son Ahmed on 8 November 2001.   The review applicant and her children live in Melbourne and she receives a sole parent pension.   It is claimed, and I accept, that Mohamed and Zead regard the visa applicant as their father and they enjoy a close relationship with him.   Neither they nor Ahmed nor the review applicant have seen the visa applicant since he left Australia last year.

Issues

14. In the opinion of the Minister’s delegate, the visa applicant failed to pass the character test prescribed by s501 of the Act. The Minister’s delegate also took the view that the residual discretion provided by s501 should not be exercised in the visa applicant’s favour. These same issues require my consideration.

“(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:

(a)       …

(b)      …

(c)      having regard to either or both of the following:

(i)        …

(ii)      the person's past and present general conduct;

the person is not of good character.”

The provisions of s501(1) are not obligatory. “The Minister may refuse …”.  Thus there exists a residual discretion to grant a visa even if the visa applicant fails the character test.

Under s499 the Minister may give directions to a person or body having functions or powers under the Act as to the performance of the functions or exercise of the powers. Such directions are binding upon the AAT.

The Minister’s Direction No 21 issued on 23 August 2001 contains directions as to the application of the character test under s501 and the exercise of the residual discretion in the event that the applicant fails the character test.

Character

15.     The nature of the character test has been discussed in many previous decisions.   Some of the most useful observations are as follows:

(i)Prasad and Minister for Immigration and Ethnic Affairs (AATA 9822, 7 November 1994).  Deputy President McDonald observed:

“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.”

(ii)       Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, per Deputy President McMahon at 154 and 155:

“'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 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."

(iii) Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Full Federal Court) Per Lee J at 94:

"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 proved 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."

(iv)Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 per Full Federal Court at 324:

Section 501

"... 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 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.”

16.     In my opinion the visa applicant plainly fails to pass the character test in the present circumstances.   At interview with the Minister’s delegate in Lebanon on 19 November 2002, he admitted that when he came to Australia he never intended to return to Lebanon.   He presented a false case to the Minister’s delegate in an attempt to secure a protection visa.   He says he did not speak English, was unfamiliar with our law and received advice from others before doing so, but it is quite obvious, despite the fact that Mr Hassoun frankly assesses the visa applicant as “not being highly intelligent”, that he deliberately embarked upon a course of deception to secure prolonged residency in Australia to which he was not entitled.    Notwithstanding his lack of success the visa applicant persisted in this course of deceit by seeking review by the RRT and continuing his lies and deception before that Tribunal.   This ploy failed and he then overstayed for several years.   After returning to Lebanon in 2002 he perserved with his lies when interviewed by the Minister’s delegate on 19 November 2002.

17.     Counsel for the respondent submitted that the visa applicant was looking for “someone to marry” while he remained illegally in Australia, but the visa applicant denied this when it was put to him during his evidence.   There is no direct evidence bearing upon this question, and, whilst one is tempted to suspect that he saw prospective marriage as a way to achieve his goal to stay in Australia, a firm conclusion cannot be reached on this issue, which, in any event loses some of its relevance as it seems clear enough that the marriage is now genuine.

18.     In Ly and Minister for Immigration and Multicultural Affairs (2000) AATA 339 at paragraph 48 Deputy President Forgie said:

“A decision to marry may be based on many things and two people may come to that decision to do so in countless ways.   There is no one basis and no one path to the decision.   The fact that each was `ripe for marriage’ does not lessen the validity of their decision to marry or make the basis of their decision anything other than their simply wanting to be with each other in a marriage.”

A marriage which starts out as a sham for the sole purpose of giving one of the parties status to apply for Australian residency may sometimes, albeit rarely, blossom into a genuine matrimonial relationship.   If and when this occurs the initial deceit will, of course, remain of some significance to the good character issue, but the durability of the marriage will bear more directly upon the favourable exercise of discretion.

19.     The visa applicant has abused Australian immigration laws by embarking on a calculated and persistent course of deception in his quest for a protection visa.   This conduct has obviously caused unnecessary expense to the Australian taxpayer.   This was seriously reprehensible conduct.   This was not a case of a single untruth in a departmental form or a couple of inconsequential evasions or lies during an interview.   This was a detailed fabrication of historical events persisted in over a substantial period of time.   The applicant protests remorse, but I am sceptical of such claims when, as here, they appear to be the product of self reproach upon exposure rather than genuine contrition.

20.     I have no hesitation in concluding that the visa applicant fails to establish that he is a person of good character.

Discretion

21.     The Minister’s Direction No 21 requires me to consider the following primary considerations:

(a)the protection of the Australian community,

(b)the expectations of the Australian community; and

(c)the best interests of any children involved.

(a)      Protection of the Australian community

22.     In considering the level of risk to the community regard must be had to –

(i)the seriousness and nature of the relevant conduct giving rise to the adverse character assessment;

(ii)the likelihood of its repetition; and

(iii)whether visa refusal may prevent or discourage similar conduct by way of general deterrence of similarly disposed individuals.

The Government takes the view that presenting false or forged documents or making false or misleading statements in connection with entry into or stay in Australia are “very serious”.   The Government also takes the view that a person’s previous general conduct is highly relevant to the likelihood of recidivism.

The Government also expresses the view that “while not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa”.

It has sometimes been urged upon me by counsel that an adverse decision in an immigration case involving character issues is unlikely to act as a deterrent to future deceitful visa applicants because such decisions do not attract media publicity either in Australia or the country of origin of potential offenders.   I do not accept this argument.   In my opinion consistency of approach by the Tribunal is all that is required to ensure that the message gets across.   This is no different from the way in which the deterrent message is sent by the criminal courts to would be criminal offenders in the general community.   I am quite confident that the fact of and general reasons for visa refusals permeate the expatriate communities of various nationalities, which are residing in Australia.    They may not understand the finer points of the decisions and they may not have any particular interest in individual cases but, if there is consistency, the basic message soon gets through.   “If you lie in relation to material matters when you apply and your deceit is discovered your visa will be refused”..   It was suggested to me recently by a migration agent that he and his colleagues do not publicise such matters to their clients.   If this is so, I suggest they are in dereliction of their duty.

(b)      Expectations of the Australian community

23.     Australian citizens expect non-citizens to obey Australian laws while in this country.   This proposition, endorsed by the Government is so obvious that it scarcely requires stating.   It is equally obvious that, in general, the Australian community would expect that a person who has practised fraud or deception in an attempt to secure a visa would not be rewarded by achieving that goal once his misdeeds had been revealed.

(c)       The best interests of the child

24.     In dealing with this issue it is worth setting out paragraphs 2.13 to 2.16 inclusive of the Minister’s Direction:

“2.13This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.   The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.

2.14Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.

2.15In general terms, the child’s best interest will be served if the child remains with its parents.   Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen, include, but are not limited to:

(a)any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

2.16When considering the best interests of the child, decision-makers should have regard to the following:

(a)the nature of the relationship between the child and the non-citizen;

(b)the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c)the age of the child;

(d)whether the child is an Australian citizen or permanent resident;

(e)the likely effect that any separation from the non-citizen would have on the child;

(f)the impact of the non-citizen’s prior conduct on the child;

(g)the time (if any) that the child has spent in Australia;

(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.”

25.     Both the review applicant and Samual Hassoun gave evidence that the marriage between the visa applicant and the review applicant has been happy and harmonious.   Their son is now 18 months old.   Mr Hassoun said of his brother-in-law, the visa applicant, “He is not very intelligent but he loves his child”..   During his evidence, the visa applicant also expressed his love for his wife and child.   I have no reason to doubt this.   However the marriage originated I have no reason to disbelieve the claim that it is a happy one and I accept that the visa applicant loves his son.  However, the boy is still very young.   I see no reason to conclude that even though he is an Australian citizen he would suffer hardship if he were to travel to Lebanon with his mother to be raised within his father’s Lebanese community.    As Deputy President Forgie in Chheang and Minister for Immigration and Multicultural and Indigenous Affairs (2003) AATA 254 @ paragraph 61: “That the standard of living is poorer in one country than another is not necessarily determinative of what is in a child’s best interests”.  The visa applicant has training as a carpenter and works on his father’s farm in the vegetable garden.   He has other relatives living in the house and the general picture presented by his evidence is of a close family unit living not in luxury or affluence, but at least in peace and security.

26.     These considerations do not take account of the effect of a visa refusal on the review applicant’s two children by her first marriage.   Neither of them gave evidence at the hearing on 4 April 2003, but I received a letter from the elder boy 4 days after I had reserved my decision.  The letter was taken into evidence on 8 May 2003  as an exhibit (“F”).  At that time I also heard oral evidence from Mohamed at which time he confirmed the contents of his letter.   He is plainly an intelligent boy and he spoke with some fluency and maturity about the present family situation.    He was naturally concerned about the effect these proceedings are having upon his mother’s well being.   The contents of exhibit “F” are as follows:

“My name is Mohamed Osman and I am the son of Malake Hammoud and the stepson of Mohamed El-Soj.

Sir, I am writing this letter to you in regards to my stepfathers case that was heard in your tribunal on the 4^th of April.    Mum tells me that a decision has not been made yet.

Since the court hearing on Friday, I have been very concerned about my mother’s health.   She’s been very depressed and upset.   I pray to god that she doesn’t need to go back on medication.

Sir, My step dad has been away from our family for ten months.   We are hoping and praying for him to return to us because he has been the only father my brother and I have every known.   My natural father was a very bad human being and treated my mum very badly.   In that he was very violent and selfish.   It took my mum a very long time to get over depression that was caused by her marriage to him.

Sir, I feel very sorry for my brother Ahmed El-Soj who hasn’t got to meet his father because he left him at seven months.   The only reason my dad left my baby brother at such a young age was because his lawyer advised him to leave the country in months time or he’ll be forced out.   My dad is always phoning and telling my mum to send video tapes and photos of us especially my baby brother.

Sir, my mum is trying very hard to cope without her husband, paying bills, taking care of three boys and looking after the house.

Sir, my brother and I have noticed that it has stressed her out and we are trying to help as much as we can.   In my heart I know she is missing my dad a lot.   One of the main reasons my dad was refused a Visa was that he was found to be of a bad character my mum said.   I think it’s very hard to believe because the last two years we’ve had with my dad as been wonderful.

Sir, I hope you have the time to read my letter and I hope your decision will make us all very happy like we were before he left.

Yours sincerely,

Mohamed Osman (15).”

27.     Mohamed said that he prepared this letter himself.   I have no reason to disbelieve him.   Mohamed’s evidence tends to confirm what the review applicant and Mr Hassoun told me of the relationship between Mohamed and Zead and their stepfather.   The issues raised in respect of Mohamed and Zead emphasise the importance of paragraph 2.14 of the Minister’s Direction.

28.     These 2 boys are Australian citizens and are well advanced in their education in Australia.   If their mother were to choose to follow her husband to Lebanon with Ahmed, they may be left alone in Australia.    Their biological father has seen them only once since he deserted their mother and he has no interest in them whatsoever.   There is absolutely no basis for concluding that he would take over parental responsibilities if the boys remained in Australia.   In 1997 following their divorce he told the review applicant that he will resist any attempt by her to take them out of the country.   Whilst their mother has relatives in Australia with whom they may be able to live in her absence, there is no evidence which would support a conclusion that such an outcome is probable.   In my opinion, it would be a considerable hardship for them to have to accompany their mother and re-establish in Lebanon.   I have  evidence from Mr Riad Khodr, the principal of the Maarefa school which the boys attended on Saturdays to the effect that they were able to speak some Arabic, but that they had difficulty reading and writing the Arabic language.    Mr Rodney Strong, Mohamed’s English teacher at Campbellfield secondary school since January this year spoke highly of his pupil’s skills in all aspects of English including writing, spelling and expression.  They are well settled with their mother in Australia and plainly their best interests would be served by her re-uniting with the visa applicant in this country.    If she chooses to stay with them in Australia and to abandon her husband, if he is refused entry,  their situation would be no worse than it is at the moment, but Ahmed would be deprived completely of his father's society and influence.

29.     The Minister’s Direction contemplates that other considerations, including disruption to a visa applicant’s wider family should be taken into account, but that generally such matters should be given less individual weight than that given to primary considerations.

30.     Paragraph 2.17 of the Minister’s Direction reminds us that “the family is the natural and fundamental group unit of society, and is entitled to protection by society and the State”.   When assessing the review applicant’s position we are also reminded that “in assessing the compassionate claim 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” (visa applicant) “was of character concern at the time of entering into or establishing the relationship”.   This is an issue of direct relevance in the present case.   The visa applicant gave evidence that he told his wife that he was in Australia illegally about mid 1998 “when I got to know her before we were married”.

31.     The review applicant’s evidence was contrary to this.   She said that her husband told her he had applied for a refugee visa after they had been married for about 6 months – “about Christmas 2000 – before we were married under Australian law”.   Whilst this is not quite the same as saying that she first learnt he was “illegally” in Australia then, in context, it amounts to the same thing.   I accept the submission of counsel for the respondent that the strong likelihood is that she knew her prospective husband’s status as an illegal non-citizen well before they were married.

32.     The Minister’s direction also enjoins decision-makers to consider other issues including:

“(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;  

(d)family composition of the non-citizen’s family, both in Australia and overseas;

…

(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

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

(i)whether the application is for a temporary visa or permanent visa;

(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.”

33.     The review applicant says she would find it very hard to relocate with her family to Lebanon.   She did not give details of the alleged hardship, but obviously it would involve the elements relating to the children who I have mentioned above and also her separation from her immediate family and relatives in Australia.   She also believes that health and education facilities and social services generally are of a much lower standard in Lebanon than here.   Exhibit “G” confirms that Lebanon is now politically stable, but its welfare services do not appear to equal Australian standards.

34.     I have already mentioned how seriously I view the visa applicant’s misconduct in lying persistently to migration officials in trying to secure a protection visa.   His behaviour was totally reprehensible.   There is little, if any,  evidence upon which a finding could be made that he has been “rehabilitated”.   I have already expressed reservations about his claimed remorse.

35.     His visa application if successful could lead to permanent residency.  In this respect the observations of the Federal Court in Goldie’s case (supra) are of particular relevance.

36.     The review applicant did not travel to Lebanon with her husband in June 2002, and has not lived with him since that time.   She is Australian born and is strongly disinclined to leave Australia to live in Lebanon.   She visited Lebanon once with her former husband and whilst there she and the 2 boys suffered severe internal illnesses.   Zead and Ahmed also suffer from a blood disorder, which requires medical attention of a standard, which she fears, is unobtainable in Lebanon.   I am in no doubt that she will not leave Australia to live in Lebanon with the visa applicant, no matter what decision is made on this application.   I am satisfied that she will remain with her three sons in Australia whatever the outcome may be.

37.     She suggests that if her husband is permitted to join her, he will be able to alleviate some of the financial hardship, which she presently experiences, but I have difficulty in accepting this.   The visa applicant is only semi-skilled and during his period of illegal residency in Australia claims to have supported himself by doing odd jobs.   How much he could contribute to the family income from such irregular sources is problematic to say the least.

38.     The real loss to the review applicant’s present family situation caused by the visa applicant’s absence is in the matrimonial society and support which he may be able to provide to her.   The review applicant is presently taking stress medication, which she attributes to her having to cope with family responsibilities in her husband’s absence.   Mohamed sees himself as “the man of the family” at the moment, I think, and has indicated a wish to obtain part-time work to assist in this regard.    His uncle provides some male influence in his life.    Whilst Mohamed and Zead have an affectionate bond with the visa applicant, I think that Mohamed’s main concern is for his mother’s health and general well being, which he thinks has been adversely affected by the visa applicant’s exclusion from Australia.

39.     As I have already found, the review applicant was aware of the visa applicant’s migration problems before she married him.   She plainly took a risk in proceeding to enter into a marriage relationship in such circumstances.    The substantial question that has caused me hesitation in disposing of this application to review, is whether Ahmed’s situation is such that his father’s very serious conduct in pursuing the bogus refugee application should in effect be put to one side by my directing the respondent to ignore the adverse character assessment in processing his visa application.

40.     If the application fails, there is no reason to suppose that Ahmed will be unable to have future contact with his father by visiting him in Lebanon and, as he grows up developing and maintaining additional contact by mail and phone.   It is not without significance that Ahmed will have the support and assistance of his two elder half-brothers and his mother’s relatives in Victoria.   I have given much time and careful thought to the problem, but in the final analysis I have not been persuaded that my discretion should be exercised in the visa applicant’s favour.   Accordingly, I affirm the decision under review and refuse the application to review.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  4 April, 8 May 2003
Date of Decision  16 June 2003
Representative for Applicant     Mr  Samel Hassoun
Counsel for the Respondent     Ms J Greaves
Solicitor for the Respondent     Blake Dawson and Waldron