Iskander and Minister for Immigration and Multicultural Affairs - [2002] AATA 226

DECISION AND REASONS FOR DECISION [2002] AATA 226

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1062

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JENNIFER ISKANDER
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date25 March 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
  [Sgd S P Estcourt QC]
  Deputy President
CATCHWORDS
Immigration - refusal of visa on character grounds - false and misleading conduct in dealing with immigration authorities - exercise of discretion to grant visa notwithstanding bad character - interests of applicant - hardship - decision to refuse affirmed.
Migration Act 1958 – s501
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AA 148

REASONS FOR DECISION

25 March 2002 Mr S P Estcourt QC., (Deputy President)

This is an application to review a decision of the respondent to refuse an application for a spouse visa made by the applicant's husband, Raymond Iskander.
The respondent contends that the visa applicant is of bad character because of his conduct relating to an earlier protection visa application and because of his association between 1991 and 1994 with an organisation known as the Lebanese Forces and with its leader, one Samir Geagea.
For the reasons which follow, I accept the respondent's contentions in relation to the general conduct ground and accordingly I do not need to decide the issue of association.
In 1997 the visa applicant obtained a tourist visa which contained a "no further stay" condition (Condition 8503 pursuant to the Migration Regulations 1994 Schedule 8). It is contended by the respondent that 10 days prior to his departure the visa applicant was interviewed by staff at the Australian Embassy in Beirut in connection with his proposed visit to Australia and he said that there was no reason why he couldn't return to Lebanon after his visit to Australia and that he understood and accepted the "no further stay" condition.
That contention is entirely consistent with the oral evidence given by the visa applicant before me as to his knowledge and understanding of the "no further stay" condition and I find accordingly.
On 9 July 1997 the visa applicant lodged a protection visa application in which he stated, inter alia, that the reason he left Lebanon was:
"Because I am targeted by Islamic people who are supporters of "Hazballah" for persecution, especially as I became known that I am belong [sic] the Lebanese Forces and as well, I was the guard of its leader Samir Geagea" … and "I am the Special Guard of Dr Samir Geagea …".
That visa application was refused and on 9 February 1999 the visa applicant appeared before the Refugee Review Tribunal. There he stated, inter alia:
"Well I was very well known because I was very close to Geagea. I was the bodyguard of Samir Geagea and I've seen what happened to many of my friends before me. Two of them were killed right in front of my eyes … and "… once in self defence I had to kill one of them so that's why they want revenge."
Before me, the visa applicant claimed in evidence that he was no more than a security guard on the door of a compound in Amchit which was visited by Samir Geagea once a month or so for meetings at which times the visa applicant escorted him to a room in the compound building.
As to the self defence incident the visa applicant told me that he had never said that he had killed anyone, rather he and some colleagues were attacked, one of his colleagues returned fire and may have shot one of the attackers in the leg.
I accept that the visa applicant's evidence before me was truthful. The corollary in my view is that he was exaggerating his claims of fear of persecution in his protection visa application and before the Refugee Review Tribunal and I so find.
Whilst the Refugee Review Tribunal, in refusing the visa applicant's protection visa application, accepted the genuineness of his fears, with the benefit of hindsight I am of the view that the protection visa application was made solely for the purpose of gaining an immigration advantage.
Whilst Condition 8503 admits of an application for a protection visa, I somewhat am reinforced in this finding by the fact that it was only 10 days before coming to Australia that the visa applicant had accepted that there was no reason why he couldn't return to Lebanon after the expiration of his tourist visa.
Moreover, his protection visa application was made less than three months after his arrival in Australia and his decision to make such an application instead of returning to Lebanon appears to have turned on his preference for Australia's safer and better ordered environment.
I therefore find that the visa applicant made false claims in his protection visa application and gave false evidence to the Refugee Review Tribunal in support of that application and on that basis alone he fails to pass the character test under s501(c)(ii) of the Migration Act 1956 ("the Act"), having regard to paragraph 1.9(b) and (c) of Ministerial Direction No 21 and given that in my view there are no countervailing factors.
Further, and quite irrespective of that Direction, which is issued by the respondent for the guidance of decision-makers in cases such as this, s234 of the Act makes it an offence, in connection with an application for a visa, to make a false or misleading statement. That such an offence is serious is clear from the penalty provided by the section, namely 10 years imprisonment or a fine of $110,000 or both.
Turning to the Tribunal's residual discretion under s.501 of the Act to nevertheless grant a visa in the face of bad character, Ministerial Direction No. 21 requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The three primary considerations are:
(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 relationship between a child or children and the person under consideration, the best interests of the child or children.
As these proceedings do not involve any relevant parental relationship, the only relevant primary considerations are the protection of and the expectations of the Australian community.
Relevant, "other considerations" in this case include the genuine relationship between the applicant and the visa applicant and the degree of hardship which would be caused to immediate family members lawfully in Australia (including Australian citizens), whether the immediate family members are able to travel overseas to visit the non-citizens, the nature of the relationship between the non-citizens and the immediately family members, whether immediate family members are in some way dependent on the non-citizen's family, both in Australia and overseas, and any evidence of rehabilitation and any recent good conduct.
A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No. 21, a consideration of:
(a) The seriousness and nature of the conduct.
(b) The likelihood that the conduct may be repeated.
(c)The likelihood that the visa refusal would prevent like offences by other persons.
The Australian Government, according to Direction No 21, regards serious offences against the Migration Act as very serious. That is not surprising. I have already pointed out the penalties for a breach of s234 of the Act.
It is unlikely that the visa applicant would repeat the conduct given that his application is now for a permanent visa, however the remaining consideration of general deterrence is relevant. If the visa applicant is refused entry because of his breaches of this country's migration laws others may be less minded to do so.
As to the expectations of the Australian community, it must be trite to say that the community expects non-citizens to obey its migration laws and to be open and honest with migration officials in relation to visa applications.
As Deputy President McMahon said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 @ 155-156:
"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."
The Australian community would not expect that false claims of persecution would be rewarded with the grant of a visa.
As to the "other considerations" to be taken into account under the Direction No 21, it is important to observe the visa applicant and the applicant's circumstances.
It seems clear that the marriage between the applicant and the visa applicant is genuine and the relationship deep and loving. The separation of these two people has caused each of them great hardship as a result and should the applicant join her husband in Lebanon it will cause great distress to her family in Australia. Further the applicant would not find it easy to either live or work in Lebanon because of language problems and that country's many difficulties.
These are powerful considerations to be taken into account when balancing all factors affecting the Tribunal's decision, however I am not persuaded that they tip the balance in this case in favour of exercising the residual discretion to authorise the issue of a visa to the visa applicant regardless of his failure to pass the character test.
I note that in considering the other relevant matters under the Direction No. 21, I am satisfied that apart from his conduct and character in an immigration sense, the visa applicant is a man who enjoys good character there being no suggestion to the contrary.
It follows that the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  20 March 2002
Date of Decision  25 March 2002
Counsel for the Applicant        Mr Guy Gilbert
Solicitor for the Applicant          Ralph Manno
Counsel for the Respondent    Mr Richard Moon
Solicitor for the Respondent    Blade Dawson Waldron