Issa and Minister for Immigration and Multicultural Affairs - [2001] AATA 752

DECISION AND REASONS FOR DECISION [2001] AATA 752

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/169

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ADRIANA ISSA
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

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

Date31 August 2001
PlaceSydney

Decision      The decision under review is affirmed.
  [Sgd S P Estcourt]
  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 – s.501
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

31 August 2001 Mr S P Estcourt QC., (Deputy President)

This is an application by Adriana Issa ("the applicant") for the review of a decision by the respondent to refuse a sub-class 309 (spouse) visa to the applicant's partner Ismail Al Wakede ("the visa applicant") on the basis that he was not of good character having regard to his past and present general conduct.
At the commencement of the hearing, Mr Hardman, counsel for the respondent identified the three basis upon which the respondent asserts that the visa applicant fails the "character test" established by s.501 of the Migration Act 1958 ("the Act").
First, it was contended that the visa applicant, in support of his application lodged a forged a document with migration officials, that document entitled "Application of Confirming the Contract of Reconciliatory Dissolution of Marriage" and dated 16 December 1999.
Secondly, it was contended that two applications for protection visas made by the visa applicant prior to his application for a sub-class 309 visa were not genuinely made and contained false information.
Thirdly, it was contended that the visa applicant had stayed illegally in Australia after he was notified by migration authorities that his bridging visa ceased to have effect and that he worked illegally whilst in Australia on, respectively, a business visa and various bridging visas, none of which permitted him to work.
The Tribunal is more than satisfied that the "Application of Confirming the Contract of Reconciliatory Dissolution of Marriage" is not a genuine document.
The uncontested evidence of an expert forensic document examiner Ms Patricia Moss is that the "Ministry of Foreign Affairs" (Syrian) stamp on the document was produced by an inkjet printer and not by the official method of wetstamping using endorsement stamps with ink.
The Tribunal is not able to be satisfied however, on this issue alone, that the visa applicant was other than truthful when he said in evidence that he had no idea that the document was forged.
The document was apparently issued by a private office in Damascus presumably acting with some official sanction to register births, deaths and marriages and the like. It is possible that someone within that office acted unlawfully, for anyone of a number of reasons, in producing this document.
Again, taken alone, the Tribunal is not satisfied as to any lack of veracity on the part of the visa applicant when he said in evidence that he received no letters from migration officials advising him his visa had expired and that he had at no time worked in Australia.
To a large extent he is supported in this evidence by the applicant and letters do go astray in the mail.
The fact that the visa applicant's spouse visa application stated that he had worked in Australia as a painter and decorator may be a simple error on the part of the migration agent who completed it. Indeed it would be stupid of the visa applicant to set out his own illegal work in a visa application which he must have known would be scrutinised carefully.
However, even giving the visa applicant the benefit of the doubt on these issues, on the issue of the second protection visa application however, the Tribunal is satisfied beyond any doubt that the visa applicant provided false information to migration officials.
In that application, it was stated that the reason for the visa applicant leaving Syria and seeking protection in Australia, was that he was the leader of a group known as Tahrir Al Joulan, (a political group asserting civil rights), that the authorities in Syria wanted him, that his family were in secret hiding and that if he returned to Syria he would probably be assassinated.
Before the Tribunal the visa applicant said that the application was completed by a migration agent, that he had never told the migration agent those things, that they were not true and that they had been made up by the migration agent. He claimed the first he had heard of such claims was when they were mentioned to him while he was giving his evidence to the Tribunal.
This evidence does not sit happily with the contents of a record of interview conducted by migration officer, Alan Davis, with the visa applicant at the Sheraton Hotel in Damascus on 9 January 2001.
In that record of interview Mr Davis is noted as asking the visa applicant:
"Are you involved in any political activities?"

and the visa applicant is noted as answering:
"I used to be involved with Tahrir Al Joulan – Independence of Al Joulan, but not any more."

That answer, in the Tribunal's judgment, gives the lie to the visa applicant's claims that he had never told such a thing to his migration agent and had never heard such a thing until the hearing before the Tribunal.
Further, because the question does not mention Tahrir Al Joulan but only the answer, the Tribunal is well satisfied that it is no mere error of translation, which gave rise to the mention of that group.
On the basis that the visa applicant provided false information to migration officials in his second protection visa application, the Tribunal finds that he does not pass the character test under s.501 of the Act.
Ministerial Direction No 17 and/or No 21, issued for the guidance of decision-makers, including the Tribunal, provides that in the absence of any countervailing factors, of which I find none, the provision of such false and misleading material constitutes a failure to pass the character test.
Further, and quite and irrespective of the Ministerial Direction, s.234 of the Act makes it an offence, in connection with an application for a visa, to make a false or misleading statement or to furnish a document containing a false or misleading statement.
That a breach of s.234 of the Act is a serious offence is clear from the penalty provided by the section, namely 10 years imprisonment, or a fine of $110,000 or both.
Such conduct in the Tribunal's judgment renders the visa applicant not of good character on account of past general conduct.
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. 17 and/or No 21 requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The 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 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 may 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. 17 and/or 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 17 and/or No 21, regards serious offences against the Migration Act as very serious. That is not surprising.
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-citizen 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, after the non-citizen has been apprehended and deported, (notwithstanding expressions of remorse).
As to the "other considerations" to be taken into account under Direction No. 17 and/or No 21, it is important to observe the visa applicant and the applicant's circumstances.
It is clear that the relationship between the applicant and the visa applicant is a genuine, deep and loving relationship. The separation of these two people has caused each of them great hardship as a result.
The couple has only been able to keep in contact by telephone and on one occasion a 10-day reunion in Thailand.
The applicant has two young children, 4 and 6 years old and she shares joint custody with her estranged husband. Therefore, even if she wished she could not join the visa applicant permanently outside Australia with the children.
Separation has caused the applicant financial and health problems. Her own evidence and that of a close friend was that she has incurred telephone bills of some $15,000 which she can ill afford, has gained weight due to depression, has almost had a nervous breakdown forcing her to see a psychiatrist and has quit her job because she has been unable to concentrate. Her financial position is perilously close to insolvency.
These are powerful considerations to be taken into account when balancing all factors affecting the Tribunal's decision, however the Tribunal is 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 bad character.
The Tribunal notes that in considering the other relevant matters under Direction No. 17 and/or No 21, it is 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 42 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 August 2001
Date of Decision  31 August 2001
Counsel for the Applicant        Applicant appeared in person.
Solicitor for the Applicant
Counsel for the Respondent    Mr P Hardman
Solicitor for the Respondent    Clayton Utz