Hijazi and Minister for Immigration Multicultural and Indigenous Affairs

DECISION AND REASONS FOR DECISION [2002] AATA 223

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/816

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Hussein Hijazi
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date5 April 2002
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Last remaining relative visa application – whether applicant for visa of good character – past immigration malpractice – possibility of contrived marriages – protection of the Australian community held to be paramount.
Migration Act 1958 ss 499 (1) (2), 501(1) (6), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

REASONS FOR DECISION

5 April 2002 R P Handley, Deputy President

This is an application by Hussein Hijazi ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 2 February 2001 to refuse the grant of a subclass 115 (last remaining relative) visa to the Applicant's brother, Hassan Hijazi ("the Visa Applicant").
At the hearing, the Applicant was represented by Frank Charara, a community interpreter, and the Respondent was represented by Sharon Hanstein, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and Allan Davis, and in person by the Applicant, Hani Hijazi and Ihsan Hijazi.
BACKGROUND
The Visa Applicant, Hussein Hijazi, was born in Lebanon on 1 February 1963 and is aged 39. His entry into Australia was first sponsored by his brother, Hani Hijazi, on 7 June 1982. That application was rejected on 27 August 1984 because Mr Hijazi was unable to accumulate sufficient points on the economic employment assessment in the Family Reunion Category. Mr Hijazi first arrived in Australia on 30 November 1989 using a visa issued to a Brazilian national, M Paulo. On 17 December 1989, Mr Hijazi lodged an application for the grant of resident status in Australia on compassionate grounds. On 20 January 1990, Mr Hijazi married Afdol Alaouie and, on 13 February 1990, he applied for a spouse visa. On 10 July 1990, his application for the grant of resident status was refused. He was interviewed by officers of the then Department of Immigration, Local Government and Ethnic Affairs regarding his original entry visa and, on 13 July 1990 a deportation order was issued against him. He was deported on 17 July 1990.
From 9 September 1992 to 10 April 1996, Mr Hijazi lived in Michigan, USA. According to records held by the Department of Immigration and Multicultural Affairs ("the Department"), he entered the USA using a forged US visitor visa from Uganda and, whilst in the USA, worked illegally and entered into a bigamous marriage with Salimeh Haidar, being at that time still legally married to Afdol Alaouie. On 28 June 1994, a default judgment of divorce was issued in Detroit, Michigan in respect of his marriage to Ms Haidar and, on 27 September 1995, a default judgment of divorce was entered by a Court in Detroit, Michigan in respect of his marriage to Ms Alaouie. On 10 April 1996, Mr Hijazi departed the USA for Lebanon.

In about 1996/1997, Mr Hijazi applied for a subclass 104 visa, which was refused on 17 December 1997. On 7 August 1999, Hussein Hijazi (the Applicant) sought to sponsor the migration of his brother to Australia, and on 29 November 1999, Hassan Hijazi (the Visa Applicant) applied for a subclass 115 – "preferential relative" visa. Mr Hijazi was interviewed at the Australian Embassy in Beirut on 20 August 2000 and, on 2 February 2001, his application for a subclass 115 visa was refused. A copy of this decision was handed to Mr Hijazi in person at the Australian Embassy in Beirut on 20 May 2001 and, on 14 June 2001, Hussein Hijazi lodged an application for a review of this decision by the Tribunal.

The hearing of the matter commenced in Sydney on 10 January 2002 but had to be adjourned until 29 January 2002 owing to telecommunication difficulties with Lebanon. After a hearing on 29 January 2002, the matter was adjourned until 21 March 2002.

RELEVANT LAW AND POLICY

Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 115 visa. Clause 115.223 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes 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.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Hijazi is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 115 visa. If the Tribunal decides he is not of good character, it must consider the exercise of the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

ORAL EVIDENCE

Hassan Hijazi (the Visa Applicant)

Mr Hijazi said he has been treated by a psychiatrist for being edgy and nervous. The treatment comprises counselling, including the psychiatrist giving Mr Hijazi advice on how to better control his emotions and not become nervous. Mr Hijazi said that with the assistance of this treatment, he has changed and is a much better person. He acknowledged that he has made mistakes in the past, for which he apologises, and now seeks the chance to prove he is a better person. In the past, when nervous, he would tend to become a little loud, but he did not commit any offence or do anything wrong. He has now learned how to control his emotions and be more patient, and not to hit or touch anyone and not to break anything. He also has a better understanding of life and deals with people better.

Mr Hijazi said his psychiatrist has not prescribed any medication. The psychiatrist said this was not required. He has an appointment to see his psychiatrist on 20 January 2002 after which the psychiatrist will give him a final report. Mr Hijazi said he is very lonely living in Lebanon without his family and wants to come to Australia to be with his family and work.
Mr Hijazi said the first time he applied for a visa to migrate to Australia was between 1982 and 1984. A migration agent helped him complete the form. The migration agent asked him the questions and he gave the answers, which the migration agent completed in English. Mr Hijazi said he paid the agent approximately US$20 – US$30 for translating his answers and completing the application form in English. Mr Hijazi could not recall whether he paid any fees to the Embassy.
With regard to the 1989 visa, Mr Hijazi said he was introduced to a Lebanese man by people he knew who said the man was able to obtain legal visas from the Embassy. The man promised to get him a legal visa and Mr Hijazi paid him US$1,500 – US$2,500 for the visa and his fees. Mr Hijazi was assured the man would obtain the visa from the Embassy in Beirut and that this would enable him to enter Australia lawfully.
Mr Hijazi said he believed he would be getting a genuine visa and not a forged one. He gave the man his passport to obtain the visa and did not pay the man until after he had the visa checked by the Lebanese information office, which confirmed that it was genuine. Mr Hijazi therefore believed that he could rely on the visa and said that he would not have done so had he known that it was forged. He certainly would not have paid the fees had he been aware that the visa was forged. He acknowledged that this was a lot of money to pay for a visa but said, at that time, like many others, he was desperate to leave the country.
Mr Hijazi said the man had asked him a few questions about his family in Australia and said he would complete an application form for a tourist visa for him. He advised that obtaining a tourist visa was simpler. The man had first of all asked for a fee of $3,000 but Mr Hijazi said this was too much. He said that after having the visa checked by the Lebanese information office, he believed his name was on the visa and that it was for a period of six months.
Mr Hijazi denied that he had admitted at the interview on 20 August 2000 that he knew, at the time of his entering Australia, that the visa was forged. He said he only learned that it was a false visa when the problems started between himself and his wife, Ms Alaouie. He said he met Ms Alaouie in Sydney when visiting some people from his city in Lebanon, when she was also present. This was about 4 or 5 days after his arriving in Australia. He said they were introduced and after that they started talking and over a period fell in love and got married. Their marriage took place about 2 months after Mr Hijazi's arriving in Australia. He emphasised that he did not get married in order to obtain permanent residence in Australia.
Mr Hijazi said his relationship with Ms Alaouie broke down because of misunderstandings and trouble between them. He said if he had wanted permanent residence, he could have put up with their problems for another month and then he would have obtained a permanent resident visa. However, he knew he could not stay with Ms Alaouie for ever and did not want to rely on her in order to obtain permanent residence. Because she had discovered that he had paid money in order to obtain his visa to come to Australia, when their relationship broke down, she dobbed him in to the Department.. As a result, he was called into the Department for an interview and they inspected his passport and said his visa was false. This was when he first learned that the visa was false. He was taken to a detention centre and from there to the Court where a solicitor acted on his behalf. They confirmed the visa was false and said that he could not re-enter Australia for five years from the time of his departure. He was then taken to the airport where immigration officers stayed with him until he boarded the plane.
Mr Hijazi said that when it was clear his relationship with Ms Alaouie had broken down, he asked their religious leader, the Sheik, to act on his behalf and undertake the necessary process to enable Mr Hijazi to divorce his wife. The Sheik did so and he and Ms Alaouie were divorced according to Islamic custom before Mr Hijazi returned to Lebanon. It was after the divorce that Ms Alaouie dobbed him into the Department, and he therefore did not have the opportunity to make the necessary arrangements for a divorce according to Australian law. He finally did this in an American court and sent his ex-wife a copy of the relevant documents.
Mr Hijazi said that after returning to Lebanon, he obtained a visa for the United States. Mr Hijazi denied that he had entered the USA on a false visa. He got assistance from someone in completing the visa application form: he gave this person the answers to insert on the form in English. Having completed the form, Mr Hijazi gave this person his passport and he obtained the visa for Mr Hijazi. Mr Hijazi paid only a small fee to this person for his assistance in completing the application.
While in the USA, Mr Hijazi married Salimeh Haidar. The marriage took place about 4 months after his arrival. He said this was a genuine marriage. However, about a year later, the US authorities discovered that his Australian marriage had not been dissolved, which therefore invalidated his marriage to Ms Haidar. They therefore rescinded his two year protection visa and issued him with a 6 month visa to enable him to divorce Ms Alaouie and consider remarrying in the United States. Although Mr Hijazi's marriage to Ms Haidar was a genuine one, she became very upset when she discovered that he was still married to an Australian girl and broke off their relationship. Mr Hijazi's attorney advised him to also divorce Ms Haidar.
Mr Hijazi was represented by a US attorney, David Wenger, who was able to extend Mr Hijazi's 6 month visa when Mr Hijazi was unable to take immediate steps to divorce Ms Alaouie. The result of this was that Mr Hijazi was still in the USA legally at the time of his second divorce on 27 September 1995 and, even when he departed the USA on 10 April 1996, his attorney advised him that he could remain in the USA for a further 2 months if he wanted to marry another US citizen.
Mr Hijazi denied that he had been interviewed by the Senior Migration Officer at the Australian Embassy in Beirut, Allan Davis on 20 August 2000. Even though Mr Hijazi said that he was aware that Mr Davis was handling his application, he said he never had an interview in respect of that last application. He denied that he had made the admissions that Mr Davis alleges. He said he remembered being interviewed in 1996, but could not remember making any admissions on that occasion. He denied having admitted to paying a large sum of money to obtain a visa for the USA. He repeated that he only paid a small amount of money to the person who assisted him in completing the application form and not for the obtaining of the visa itself. He once again emphasised that his visa for entry into the United States was not false and he did not enter the USA illegally.
Mr Hijazi was asked why he had not mentioned Ms Haider in completing his application for migration to Australia in 1999. He said he was not aware that he needed to include details of his American wife. He thought he only needed to provide details about his time in Australia.
Mr Hijazi said he has worked as a hairdresser for both men and women for the last 12 or 13 years. Currently, the number of days he works depends on the amount of work he gets. He may work 2 or 3 days a week or possibly more. His family in Australia send him money – $300 - $500 monthly. All his immediate family members are in Australia. The rest of his family, including his cousins, are in the USA. He is currently living by himself in Lebanon.
Ihsan Hijazi

Mr Ihsan Hijazi is the Visa Applicant's father. Mr Hijazi said he arrived in Australia on 1 July 1996 and that it is a country he loves. All of his sons and grandsons are in Australia except his one son in Lebanon and a daughter who is married and living in the United States. Mr Hijazi says he loves his son in Lebanon and that it is very difficult for his son living by himself in a village in South Lebanon. Mr Hijzai said he maintains contact with his son from time to time, but cannot afford to visit him in Lebanon, although Mr Hijazi acknowledged he had been back to Lebanon once since arriving in Australia, in 1997, for about three and a half months. He said the situation in Lebanon is very hard at the moment. Mr Hijazi receives a social security pension of $373.72 per fortnight and pays rent.
Mr Hijazi acknowledged that his son has made mistakes in the past, but he said that everyone makes mistakes. Mr Hijazi said that in Lebanon, it is often necessary to bribe officials in order to get things done. Mr Hijazi gave his son the money to obtain his visa to come to Australia in 1989 which he recalls was about US$2,500. Mr Hijazi did not discover the visa was false until after his son came to Australia and was arrested. His son had intended to stay in Australia permanently and was not aware when he arrived that the visa was false.
Mr Hijazi said his son never told him that either of his marriages was not genuine, nor had his son told him that he had travelled to the USA on a false visa. Mr Hijazi said he was in Lebanon at the time of his son's marriage in Australia, and had he known of the breakdown in the relationship between his son and his wife, he would have tried to reconcile the marriage.
Mr Hijazi said his son is a good man and his family in Australia will look after him. Mr Hijazi said the family in Australia are all contributing towards sending money to his son to enable him to survive in Lebanon.
Hani Hijazi

Mr Hani Hijazi is the Visa Applicant's brother, who was born on 5 April 1954 and became and Australian citizen on 31 August 1978. Mr Hijazi said he was engaged to marry an Australian citizen and came here to get married on 14 February 1977. Mr Hijazi said he is now in the middle income bracket with an income averaging $1,000 - $1,500 per week generated by the Mixed Business which he and his wife run. Mr Hijazi said he has always worked and supported his family. He has 4 children all of whom are well educated.
Mr Hijazi said his brother, the Visa Applicant, is a good man and would not be a risk to the Australian community. Mr Hijazi said his brother met Ms Alaouie through his other brother's hairdressing business. Mr Hijazi said he believed his brother's marriage with Ms Alaouie was genuine and broke down for good reason. Mr Hijazi said his brother was not aware that when he entered Australia, he was entering on a false visa. Mr Hijazi said he knew nothing of his brother's application for a visa to travel to the USA. Mr Hijazi confirmed that his younger sister is living in Detroit with her son and daughter. Mr Hijazi said he has been back to Lebanon on 3 occasions: in 1985, 1993 and 2001. When he was in Lebanon in 2001, he visited his brother.

Hussein Hijazi (the Applicant)

Mr Hijazi is the Visa Applicant's brother and sponsor. Mr Hijazi said he arrived in Australia in 1986 on a skilled migrant visa. He was born on 12 April 1961. He has a hairdressing business which generates an income in excess of $80,000 per annum. He is married with 3 children, aged 10, 6 ½ and 7 months. His wife does not work. They own their own house which is worth between $400,000 - $500,000 and on which they owe approximately $220,000. Mr Hijazi said he and his family members help support their brother in Lebanon and would also help support him in Australia. Mr Hijazi said he has visited Lebanon on two occasions: in 1991 and 1997/1998, for 2 – 3 weeks. He visited his brother there in 1991, but could not remember if he done so in 1997/1998.

Mr Hijazi said that in 1989, his family were not aware that his brother entered Australia on a false visa. He agreed that his brother had made a mistake by so doing and by marrying in the USA when he was still legally married in Australia. Mr Hijazi said the Department keeps relying on the same facts in order to reject his brother's application to migrate to Australia. It is very hard for his brother living on his own in Lebanon with his family in Australia.
Allan Davis

Mr Davis, the Principal Migration Officer (Compliance) at the Australian Embassy in Beirut, has provided a statement dated 21 January 2002 (R1). Mr Davis said he clearly remembered the interview taking place in the Embassy in Beirut because Mr Hijazi had been to the counter at the Embassy asking about his application on a number of occasions. The delay in conducting the interview had been because Mr Davis was awaiting the arrival of a file about Mr Hijazi from Australia. However, Mr Davis noted that the interview could not have taken place on 20 August 2000, as stated, because this was a Sunday. He said the interview must have taken place between the 14 August 2000 and the end of that week which was when he sent an email to the Department in Canberra with regard to this case. Mr Davis said there were three people present at the interview: himself, Ms Salome Stambouli and Mr Hijazi. Ms Stambouli is a staff member at the Embassy who is fluent in both Arabic and English and acted as an interpreter. Mr Davis acknowledged that she is not accredited by NAATI, but she was born in Lebanon, then migrated to Australia, and has now been working in Lebanon for the Australian Embassy for some years. Mr Davis said she is a highly professional officer.

Mr Davis said he had met Mr Hijazi briefly at the counter on several occasions when Mr Hijazi was asking about progress with his matter. On the last occasion when Mr Hijazi came to the counter before the interview, he was advised of the interview date. Mr Davis also remembered Mr Hijazi coming to the counter on a number of occasions after the interview to enquire about the outcome. Mr Davis said he delayed making a decision after the interview while he was waiting for information from Canberra on the effect of the earlier deportation order made against Mr Hijazi. This was unusual insofar as he would normally have not needed to seek additional information and, as a delegate of the Respondent, would have made the decision almost immediately.

Mr Davis said he was sure it was Mr Hijazi whom he interviewed. He had Mr Hijazi's file and photograph and, as stated, had met him at the counter previously. Mr Davis could not recall exactly how long the interview took but said that typically such interviews last for about an hour. Mr Davis remembered asking Mr Hijazi questions about the earlier refusal of a visa in 1997 and going through the details of this with Mr Hijzai. Mr Davis said he found Mr Hijazi's approach to be quite dismissive of his earlier record. He was very off-hand about past events, such that if presented with the opportunity to do the same thing again, Mr Davis formed the view that he would do so.

Mr Davis said Mr Hijazi acknowledged that he had paid money for the visitor visa he obtained to enter Australia on 13 November 1989 and, that when he entered the country, he was aware that the visa had been obtained fraudulently. He also acknowledged that he had entered the USA in 1992 in the same way, using a fraudulently obtained visa.
Mr Davis said that after the interview, he used his handwritten notes to type up the decision record. As is his normal practice where an interview is conducted in the presence of another member of staff, he showed the decision to Ms Stambouli before he signed off on it. In the case of Mr Hijzai, Mr Davis said he prepared those parts of the decision record which related to the interview using his handwritten notes immediately following the interview. He then destroyed his handwritten notes and contacted Canberra for the information he needed concerning the effect of the deportation order.
SUBMISSIONS
Respondent
Ms Hanstein, for the Respondent, submitted that Mr Hijazi does not pass the character test by reason of his past and present conduct, in particular, because of his immigration malpractice in entering both Australia and the USA on false visas and then entering into contrived marriages which, in the case of the second marriage, involved his committing bigamy and, because of the lengths to which he is now prepared to go in order to conceal his past conduct. In addition, Mr Hijazi provided false and misleading statements on his visa applications.
Ms Hanstein submitted that Allan Davis' evidence should be accepted and the Tribunal should find that Mr Hijazi attended an interview at the Australian Embassy in August 2000 and admitted to the matters set out in paragraph 5 of Mr Davis' Statement dated 21 January 2002 (R1), including that he had entered both Australia and the USA on fraudulently obtained visas and that he had committed bigamy. Mr Davis' evidence is credible because of his clear recollection of its taking place and because his evidence is consistent with the decision record prepared by him immediately after the interview. By contrast, the evidence of Mr Hijazi is not credible. The Respondent submits that he is attempting to conceal his misconduct in order to increase his chances of obtaining a visa. Moreover, some of Mr Hijazi's claims and attempts to conceal the significance of his actions are very improbable. Ms Hanstein said that Mr Hijazi's story about his having checked the genuiness of the 1989 visitor visa, for which he paid between US$1,500 - US$2,500, should not be accepted. His evidence to the Tribunal contradicts what he told Allan Davis at the interview in August 2000 and is yet another indication of Mr Hijazi's misconduct.
Ms Hanstein contended that Mr Hijazi's first marriage in Australia was contrived. She noted that Mr Hijzai did not enter Australia until 30 November 1989 and only met Ms Alaouie after this. Yet they had married on 20 January 1990 after knowing each other for less than 2 months. Then the marriage was over by about June 1990. The fact that all of this could occur within such a short period of time suggests that it was a contrived marriage.
Ms Hanstein said that Mr Hijazi had not admitted in evidence that the visa he obtained to enter the USA was a fraudulent one. This contradicts what he told Mr Davis at the interview and what he had previously told the Department. It is another indication of the lengths to which Mr Hijazi is prepared to go in order to diminish the seriousness of his misconduct. Ms Hanstein said the Respondent contends that Mr Hijzai's second marriage was also contrived and noted that Mr Hijazi had sought to diminish the importance of his having committed bigamy by relying on his having divorced Ms Afdol according to Islamic law.
With regard to the exercise of the Minister's discretion in s 501(1) of the Act and with reference to Direction No 21, in particular, the first of the primary considerations, the Protection of the Australian Community, Ms Hanstein submitted that Mr Hijazi has committed serious misconduct and that the pattern of this misconduct suggests that it may be repeated in the light of his demonstrated disregard for the law. Ms Hanstein submitted that the report from Mr Hijazi's treating psychiatrist, Dr Ahmad Ayache dated 30 January 2002 (A7) provides no assurance of a diminished likelihood of Mr Hijazi once again acting in disregard of the law. Ms Hanstein said that the refusal of a visa in such circumstances would act as a deterrent to others who are contemplating such misconduct. She said that the Australian community would also expect that a person who had so blatantly disregarded the law would not be granted a visa.
With regard to Other Considerations, Ms Hanstein noted that Mr Hijazi had lived most of his life in Lebanon and has casual employment there. The psychiatric report (A7) suggests that his condition is improving. The refusal of a visa to Mr Hijazi would not cause any economic hardship to his family in Australia who would be able to visit Mr Hijazi in Lebanon should they so wish.
Ms Hanstein concluded by submitting that the discretion in s 501(1) of the Act should not be exercised in favour of Mr Hijazi on the ground that the protection and expectations of the Australian community outweigh other considerations, in particular any hardship to Mr Hijazi and his family.
Applicant
Mr Charara, for the Applicant asked the Tribunal to take into consideration how, in giving evidence at the hearing on 29 January 2002, Mr Hijazi had misunderstood a number of the questions that were put to him and, Mr Charara suggested, the interpretation provided by the interpreter was incomplete and confusing.
With regard to whether or not an interview took place in August 2000 with Mr Davis in Beirut, Mr Charara said Mr Hijazi has nothing to gain by denying that an interview took place. Mr Charara noted that there was no qualified interpreter present during the interview, which Mr Davis says, took place. Mr Hijazi states he only saw Mr Davis briefly at the reception desk.
Mr Charara drew the attention of the Tribunal to the letter from Mr Hijazi's family (A4), to the character references (A1 and A3), and the police statement (A2) stating that Mr Hijazi has not been convicted of any criminal offences. All this evidence indicates that Mr Hijazi is of good character and is no risk to the Australian community. Mr Charara said the Department seems to refuse to accept that Mr Hijazi has changed and continues to rely on his past conduct as a basis for its decision. In the meanwhile, Mr Hijazi and his family are suffering hardship by reason of the refusal of a grant of a visa.

APPLICATION OF THE LAW AND FINDINGS

As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Hijazi passes the "character test" having regard to his past and present general conduct. The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Hijazi does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider 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)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9(c)).
The Tribunal finds that Mr Hijazi entered Australia on 30 November 1989 using a visa issued to a Brazilian national which was false. Mr Hijazi obtained this visa in Lebanon by paying a significant sum of between US$1,500 - US$2,500 to a Lebanese man to whom he had been introduced by friends. The Tribunal finds Mr Hijazi's evidence that he was not aware that his visa was forged and that he therefore entered Australia illegally to be extremely implausible. Mr Hijazi had made other visa applications to visit Australia which had been refused and he would have known of the approximate fees he might expect to have to pay in applying for such a visa, both through that experience and also from members of his family who had migrated to Australia. The Tribunal does not accept Mr Hijazi's evidence that he did not become aware that the visa was false until after his marriage with Ms Alaouie had broken down.
The Tribunal also finds Mr Hijazi's evidence with regard to his marriage to Ms Alaouie unconvincing. He said he met Ms Alaouie about four or five days after his arriving in Australia on 30 November 1989. They were married on 20 January 1990, approximately six weeks after having first met. Apparently, the relationship then quickly broke down and was at an end by June 2000. Mr Hijazi said Ms Alaouie "dobbed him in" to the Department and that, as a result of this, he was detained following an interview and ultimately deported on 17 July 1990.
On 9 September 1992, Mr Hijazi entered the USA, again using a false visa. Once again, the Tribunal does not accept that he was not aware of its falsehood. The Tribunal also finds improbable Mr Hijazi's evidence with regard to his marriage to Ms Haidar, about four months after arriving in the USA, that he was unaware of the invalidity of this marriage given that he was still married to Ms Alaouie. The Tribunal finds it is highly implausible that he would not have been aware that an Islamic divorce, without attending to the legal formalities, would not be effective to enable him to remarry. The Tribunal finds it likely that he was therefore aware that this second marriage was bigamous. It is not entirely clear whether Mr Hijazi worked unlawfully during the period of his stay in the United States, but it seems likely that for at least a part of this period Mr Hijazi was working unlawfully.
The Tribunal finds, relying on Mr Davis' evidence, that Mr Hijazi was interviewed at the Australian Embassy in Beirut in August 2000. Mr Davis' evidence about this was credible and consistent with his decision. The Tribunal rejects Mr Hijazi's evidence with regard to the interview contained in his Statement dated 12 February 2002 (A6). The Tribunal notes Mr Davis' evidence that Mr Hijazi admitted to having fraudulently obtained visas both for Australia and the USA and to having entered into contrived marriages, the second one of which was bigamous.
Mr Hijazi's evidence that this interview did not take place indicates, at best, a highly selective memory, and at worst that Mr Hijazi is continuing to make false and misleading statements. Clearly, his denial that the interview took place would, if accepted, indicate that he had not made the admissions to Mr Davis which Mr Davis claims in his statement and evidence. The Tribunal notes the evidence of Dr. Ahmad Ayache, Psychiatrist, dated 30 January 2002 (A7), that he has been treating Mr Hijazi for anxiety and depression and "neurosis post traumatic". Dr Ayache states that Mr Hijazi's condition is "improving" and that he is a different person and feels sorry for what has happened in the past. Unfortunately, Mr Hijazi's evidence with regard to the interview in Beirut in August 2000 not taking place, suggests otherwise.
In light of the above findings, the Tribunal finds that Mr Hijazi does not pass the character test pursuant to s 501(6)(c)(ii) because of his past and present general conduct. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether, notwithstanding, not to refuse the grant of a visa to Mr Hijazi.
In exercising this discretion, the Tribunal had regard to Part 2 of Direction No. 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

With regard to the Protection of the Australian Community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…

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

(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of offences considered by the Government to be serious include, in paragraph 2.6(c), crimes against the Migration Act 1958 which, in turn, include

arranging a contrived marriage, defacto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, defacto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, defacto relationship or interdependency relationship; or using or possessing a visa granted to another person or presenting false or forged documents and making a false or misleading statement in connection with entry or stay in Australia.

Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

With regard to paragraph 2.5(b), the likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
With regard to this first primary consideration, the Tribunal has found that Mr Hijazi used a fraudulently obtained visa in order to enter Australia in 1989. He also admitted to using a similarly false visa to enter the USA in 1992. Whilst the evidence concerning Mr Hijazi's two marriages, including his second bigamous marriage, is not sufficiently definitive to enable the Tribunal to make a finding that either or both these marriages were contrived for the purposes of enabling Mr Hijazi to obtain permanent residence, nevertheless, Mr Hijazi's conduct raises questions as to his objectives in entering into those marriages. The Tribunal has also found, contrary to Mr Hijazi's evidence, that he was interviewed at the Australian Embassy in Beirut in August 2000 by Senior Migration Officer, Allan Davis. While the Tribunal makes no finding in relation to whether Mr Hijazi's evidence concerning the interview was deliberately false, nevertheless, the Tribunal is concerned that this is possibly another example of Mr Hijazi making a false statement. Thus, the Tribunal considers that there is sufficient evidence to support a finding that Mr Hijazi engaged in serious crimes against the Migration Act.

Despite the evidence of Mr Hijazi's psychiatrist, Mr Hijazi's denial of the interview in August 2000 and the pattern of migration fraud over a number of years, suggests to the Tribunal that there is an on-going likelihood that Mr Hijazi may commit further misconduct in the future, if he perceives this to be necessary to achieve his ends. Given the pattern of his misconduct over a number of years, it is important that a clear message should be sent to others contemplating such misconduct for the purposes of obtaining entry to Australia, that such conduct will not be tolerated. Thus, refusal of a visa in such circumstances is likely to have a general deterrent effect.
The second primary consideration is the Expectations of the Australian Community. Paragraph 2.12 states:
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 the Australian community would expect that the person would not be granted a visa…

In the Tribunal's view, Mr Hijazi's conduct is such that the Australian community would expect that he should not be granted a visa. The third primary consideration is the Best Interests of any Children. Since Mr Hijazi has no children, this is not relevant. The Tribunal must then consider any Other Considerations to which decision-makers are directed by Direction No 21. Paragraph 2.17 states 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 include: the non-citizen's business and other ties to the Australian community; the degree of hardship caused to immediate family members in Australia; the family composition of the non-citizen's family both in Australia and overseas; and any evidence of rehabilitation and recent good conduct.

The Tribunal notes the letters of support and character references provided for Mr Hijazi, the police certificate, and his psychiatrist's report that his condition is improving and that Mr Hijazi feels sorry for what happened in the past (A7). The Tribunal also notes that Mr Hijazi's parents and siblings are all in Australia, with the exception of Mr Hijazi's sister who is married and living in the USA. The Tribunal recognises that the separation of Mr Hijazi from his family causes hardship to both. Nevertheless, the Tribunal notes that Mr Hijazi has spent most of his life in Lebanon and has casual employment there, although he states that his family in Australia is providing him with financial support.
In conclusion, a weighing up of the primary and other considerations persuades the Tribunal that the discretion in s 501(1) should not be exercised in Mr Hijazi's favour. The paramount considerations in making this decision are the need to protect the Australian community and that the outcome should be in line with its expectations. The Tribunal therefore affirms the decision under review.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  10 January, 29 January, and 21 March 2002

Date of Decision     5 April 2002
Representative for the Applicant     Mr F Charara
Representative for the Respondent                  Ms S Hanstein

[2002] AATA 223

5 April 2002

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Immigration Control

Deportation

Good Character