Issa and Minister for Immigration Multicultural and Indigenous Af Fairs

[2003] AATA 421

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 421

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           N2002/568

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ADRIANA ISSA

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon. Mr RNJ Purvis QC, Deputy President

Date8 May 2003    

PlaceSydney

Decision The decision under review is affirmed.

(Sgd) The Hon. Mr RNJ Purvis QC
  ..............................................

Deputy President

CATCHWORDS

IMMIGRATION – spouse visa – character test – applicants each married to another person – marriages not dissolved in civil sense - Visa Applicant illegally in Australia – applications for Protection Visa refused – untrue particulars in applications – divorce certificate and translation forgeries – Visa Applicant party to obtaining forged documents – Review Applicant’s children’s attachment to Visa Applicant – absence of knowledge no excuse – hardship of Review Applicant considered – best interests of children considered – past conduct outweighed hardships to Review Applicant and children – no exercise of discretion in favour of Visa Applicant.

Migration Act 1958 ss. 234, 501

Ministerial Direction 21

Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422

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

Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244

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

REASONS FOR DECISION

8 May 2003	The Hon. RNJ Purvis QC, Deputy President
THE APPLICATION

1.This is an application made by Adriana Issa  (the Review Applicant) seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Respondent) refusing to grant to Ismail Al‑Wakede (the Visa Applicant) a subclass 309 visa for permanent entry to Australia.  The refusal decision was made on 18 January 2001.

2.In the reasons for the refusal decision it was stated, inter alia:

20. “… It is open to me based on the information above to determine that Mr Al-Wakede does not pass the Character Test as he is not of good character on account of his past and present general conduct.

…

23.      It is also clear that Mr Al Wakede’s claims to the Department of Immigration and Multicultural Affairs in Australia were based on falsehood and deception.

…       

24.      The following issues are of relevance when assessing the likelihood that Mr Al Wakede’s conduct may be repeated:

-          his past general conduct in Australia was characterised by attempts to mislead immigration officials;

-          when I observed during interview on 9 January 2001 that his past conduct indicated he was prepared to lie to Australian officials in Australia and Syria, he was indifferent to my observations.  Mr Al Wakede showed no remorse for his past actions, nor did he make any attempt to justify his actions;

-          the fact that the Applicant knowingly and willingly provided fraudulent documentation in respect of this visa application casts serious doubts as to the genuineness of other documentation submitted by him, as well as the veracity of claims made by him.

…

25.      Mr Al Wakede did not provide any evidence of recent good conduct.

…

27.      Given the nature of Mr Al Wakede’s actions it can be surmised that the Australian Community would expect his visa to be refused.  Mr Al Wakede pursued a course to remain in Australia irrespective of how much he needed to mislead Australia’s immigration system.  He was clear in his answers to me that his ultimate goal was to secure permanent residence in Australia without having to return to Syria.  He has also attempted to mislead Australia’s immigration system through the provision of fraudulent documentation.  This abuse should not be rewarded by granting him residence and eventually, possible citizenship.  It is not unreasonable for the Australian community to expect its prospective migrants to contribute positively to the community.  These actions far outweigh any possible compassionate factors.

…

30.      Mr Al Wakede and Ms Adriana Saade (an Australian citizen since 21 November 1975), met in March 1998 and started cohabiting in September 1998.

31.      Ms Saade is legally married, however she claims they are separated.

32.      Mr Al Wakede admitted to me that he was aware, at the time of his marriage [ie. the defacto marriage to Ms Saade], that he did not have any guarantees that he would be allowed to remain in Australia.

33.      The divorce certificate for Mr Al Wakede has been proven to be fraudulent and it follows that he is still married to his first spouse in Syria.  I conclude that he and the sponsor cannot have a mutual commitment to a shared life as husband and wife to the exclusion of all others as required under the definition of a de facto relationship at Migration Regulation 1.15A(2).”

THE HEARING

3.At the hearing of the subject application, the Review Applicant was represented by Mr Knoll of Counsel and the Respondent by Mr Chami, solicitor of Messrs Clayton Utz Lawyers.

4.There was tendered as evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1-T48 and supplementary documents s1-s21. The following written materials were tendered as exhibits in the proceedings and marked accordingly.

Exhibit No.	Name of Documents
Exhibit A	Affidavit of Dr P Jools dated 14 January 2003
Exhibit B	Supplementary report of Dr P Jools dated 8 March 2003
Exhibit C	Affidavit of D J Hussain dated 20 February 2003
Exhibit D	Statement by Mr Al Wakede
Exhibit E	Statement by Adrianna Issa dated 4 June 2001
Exhibit F	Statement (unsigned) by Adrianna Issa dated 17 February 2003
Exhibit G	Report of Dr B O’Sullivan dated 9 July 2002
Exhibit H	Statement of Peter Irving dated 28 February 2003
Exhibit J	Details of phone calls between Adrianna Issa and Mr Al Wakede
Exhibit K	Copy of street directory – 1 page
Exhibit 1	3 Pages Dissolution Marriage between Visa Applicant and Fatima Mohammed – Original

5.The Review Applicant, the Visa Applicant and Dr Penelope Jools gave oral evidence upon which they were each cross-examined.  The evidence of the Visa Applicant was given by telephone linkage with him in Nicosia, Cyprus.

THE ISSUES

6.The issues for determination in these proceedings as originally submitted by the Respondent and not suggested otherwise on behalf of the Review Applicant were:

(1) Does the Visa Applicant pass the character test under section 501(1) of the Migration Act 1958 (the Act) that is, is he by reason of his past and present general conduct a person who is not of good character.

(2)       If the Visa Applicant does not pass the character test:

(a)       should the decision of the Minister’s delegate be affirmed by an exercise of the residual discretion under section 501(1) of the Act against the Visa Applicant; or

(b)       should the decision of the Minister’s delegate be set aside by the exercise of a residual discretion in favour of the Visa Applicant.

(3)       Is there a requirement to consider the best interests of the children pursuant to paragraph 2.3(c) of Ministerial Direction 21 in light of the nature of the relationship between the Visa Applicant and the Review Applicant’s children.

LEGISLATIVE PROVISION AND MINISTERIAL DIRECTION

7.Section 234(1) of the Act provides:

"234 False Papers etc.

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

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

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

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

…

Penalty:     Imprisonment for 10 years or 1,000 penalty units, or both."

8.The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased.  Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.

9.By section 501(1) of the Act the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.

"501 Refusal or cancellation of visa on character grounds

…

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

…

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

(i) the person's past and present criminal conduct;

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

the person is not of good character; or

…"

10.The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs  (1999) 56 ALD 321 at 324 it was said:

"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard 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."

11.As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.

12.A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued pursuant to section 499(1)(a) of the Act.  The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.

13.Direction 21 as here relevant provides:

"PART 1 - APPLICATION OF THE CHARACTER TEST

The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.

1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ... 

1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …

1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).

…

Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct

1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

…

Subparagraph 501 (6)(c)(ii) - past and present general conduct

1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

…

(b) 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;

…

PART 2 - EXERCISING THE DISCRETION

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

Weight of considerations

2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. … 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.

Primary Considerations

2.3 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.

Protection of the Australian Community

….

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

(a) the seriousness and nature of the conduct;

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

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

a. The seriousness and nature of the conduct

2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:

…

(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

…

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

2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.

…

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

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

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

…

Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... 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 or should be removed from Australia. …

The best interests of the child

2.13 This 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.

…

OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:

…

(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …

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

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"

THE FACTUAL SITUATION

14.     The Review Applicant is separated from her husband but not as yet divorced.  In the subject application it was stated:

“My sponsors additional information:

I’m still legally married to my ex-husband.  He didn’t take steps for the divorce at the Family Court yet.  We don’t want to upset the children at this stage.  But I think I want to take those steps as soon as possible.  However, I’m Islamicly married to my de-facto husband”.

15.     The Review Applicant has two children from her marriage, Michael and Sarah Issa, aged 7 years and 5 years of age respectively.   The father of these children has agreed contact with them, which contact he regularly exercises.  He is said to be unaware of the continuing relationship between the Review Applicant and the Visa Applicant but as he was not called by either party to give evidence, his alleged lack of knowledge cannot be confirmed and the effect upon his contact with the children should the Visa Applicant be allowed into Australia is unknown.

16.     It was open to the Applicant to call her husband to give evidence as to his relationship with the children and the position that may pertain in the event of the Visa Applicant being allowed to enter Australia.  The fact that he was not so called enables the Tribunal to conclude that the Review Applicant’s case would not have been assisted by such evidence.

17.     The Review Applicant was born in Lebanon on 16 May 1974 and the Visa Applicant was born in Syria on the 23 October 1966.  The Visa Applicant is also presently married but separated from his wife and their three children, the latter living with their mother in Damascus, Syria in a house owned by the parents of the Visa Applicant.  The Visa Applicant gave evidence to the effect that he, whilst in Australia divorced his wife by telephone in a manner consistent with his Islamic faith.  He has not as yet obtained a civil divorce in Syria, stating that issues relating to the children, property and dowry are outstanding.

18.     The Review Applicant and the Visa Applicant first met one another whilst the Visa Applicant was in Australia on a subclass 456 visa lawful until 9 January 1998.  The Visa Applicant remained in Australia after the expiry of his visa.  He did not apply for any extension.  He had been associated with a Syrian trade exhibition in Australia.  Some months after they met the Review Applicant and the Visa Applicant began living together and so continued until the Visa Applicant was required to leave Australia. 

19.     At about the time of his visa expiring, the Visa Applicant met a Mr Joe Samarini who represented to him that he dealt in migration matters and offered to assist the Visa Applicant, allegedly in his obtaining authority to remain in Australia.  Evidence before the Tribunal shows that there is no record of a Mr Samarini being registered as a migration agent.  Application was made on 9 February 1998 in the name of the Visa Applicant for a protection visa, the same being refused on 11 March 1998.  The Visa Applicant did not submit any claims in connection with this application.  Although out of time, he appealed the refusal decision to the Refugee Review Tribunal, the same being in due course rejected.  In November 1998, the Visa Applicant again applied for a Protection Visa which application was determined to be not valid pursuant to section 48(b) of the Act, namely:

“Section 48 Non-citizen refused a visa or whose visa cancelled may only apply for
particular visas

A non-citizen in the migration zone who:

……

(b) either:

(i) after last entering Australia, was refused a visa, other than a bridging visa, for which the non-citizen had applied (whether or not the application has been finally determined); or

(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas) or 501 (special power to refuse or cancel);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.”

The application was then unsuccessfully made for ministerial intervention.

20.     On 3 September 1999, the Visa Applicant was located and transferred to the Villawood Detention Centre.  He was released from detention on surety being provided and departed Australia on 6 October 1999.

21.     The Visa Applicant resided with the Review Applicant in Australia from September 1998 up until his departure.  The Review Applicant says that even though they have not been together except for a holiday of ten days in Thailand since his departure, they have “a mutual commitment to a shared life as husband and wife”.

MIGRATION ACTIVITY IN AUSTRALIA

22.     As has already been stated in these reasons, the Visa Applicant entered Australia on 9 January 1997 on a visa lawful until 9 January 1998. The Visa Applicant has made two applications for a protection visa.

23.     In his application of February 1998, it was recorded that his wife Fatima Mohammed was living in Syria at the time, as were his two daughters and a son, his parents and eleven siblings.  His then current residential address was given as 14 Colina Street, Wiley Park, an address that on the evidence before the Tribunal does not exist.  A firm, Immigration and Business Services, was recorded as having assisted the Visa Applicant in the preparation of the application and as being the address for correspondence.  No reasons for claiming to be a refugee were included in the application.  They were said to be, but were not, attached.

24.     The February 1998 application was refused on 11 March 1998 and in the decision record it was stated:

“…

3.3.1    The Applicant has not submitted any claims of Convention based persecution in support of his Protection Visa application.  The Applicant’s migration agents stated in a letter dated 6.2.98 …  that supporting documents were being translated and would be provided in the near future.  I have taken into consideration the fact that the Applicant has been in Australia since October 1997 and lodged his application for a Protection Visa four weeks ago.  I consider that he has had ample opportunity to gather and provide the necessary information pertaining to his claims for refugee status in this period. 

3.4      Findings of fact

3.4.1    Based on the evidence before me I find that the Applicant does not have a real chance of Convention based persecution if returned to Syria and that his fear of persecution on return is consequently not well founded. …”. 

25.     Application was made to the Refugee Review Tribunal on 22 April 1998 without there being included in the application any reasons for making it.  They were to be forwarded.  The appeal was dismissed on 21 September 1998 by the Refugee Review Tribunal for want of jurisdiction.

26.     On or about 5 November 1998 the Visa Applicant made a second application for a protection visa.  Again he noted Fatima Mohammed as his wife and then detailed the members of his family.  Mr Mohammed Maarbani was recorded as the migration agent.  Documents to be provided later were noted as:

“letters/correspondence of our political organisations/party”

and documents that the Visa Applicant was unable to provide were noted as:

“evidence that I’m required by Syrian Intelligence”. 

In answer to the question as to why he left Syria, it is recorded at T111 and T112:

“I left Syria on a visitor visa, but the truth of the matter is that there are problems for me to return.

I am the leader of a group known as “Tahrir Al Joulan” – Independence of Al Joulan”.

My Involvement politically has led to many problems which need to be looked at in this application.

I am known as Ismail Al-Wajede, but my real name is Ismail Al-Wakede.

I will face systematic harassment or long term imprisonment if I go back to Syria.

I fear that if I go back to Syria my political opinion and involvement would lead to punishment by the authorities or long term imprisonment.  My opinion is for justice for our town known as “Kounaitra”.

In 1967, when the Israeli’s took over the “Jolan” they also had hold of “Kounaitra”, a small town which I was born in and from where my parents grew up and lived there (sic) lives.

In 1973, after a civil war breaking (sic) out, we were able to capture back our land from the Israeli’s, but it was a real struggle to have it permanently.

In 1995, I was a member of a political group known as “Tahrir Al Jolan”, which we were able to talk to govt (sic) officials about our rights and future development.  They promised alot of course, but delivered very little.  I was known to them as Ismail Al Wajade for security reasons.

In 1997, after very little response from the Government I spoke out and formed an opinion which was past the “line” for Syrian officials.  I knew then that they were after me, but nothing eventuated till after my arrival to Australia when I left I was questioned at the airport, but insisted to the secret intelligence that they had the wrong person, luckily I was able to leave the country.”

27.     As to the person who may harm or mistreat him on return, it was stated in the application:

“The Syrian secret intelligence would be a real threat to me.

If I go back I will be detained as the people that were in my group have confirmed my identification after they were forced to do this.”;

and as to why it was thought he would be so harmed or mistreated it was said:

“The people involved in my group have all been taken away by the authorities.  We were a small group of 45 people.  We all held the same views and opinion.

The reports that I get from my family in Syria is that they have all been captured.  And possibly some have been assassinated.

The regime that exists in Syria can’t be trusted in any way whatsoever.

If I go back they would definetly (sic) want me and I would be used to give them information and probably later assassinated”.

28.It was further alleged that the Visa Applicant would not be protected in Syria because:

“The authorities want me, so why would they protect me?

The Government and it’s secret intelligence would detain me for their interests.

I need to be protected in Australia.

My families location is not known to them as they are in a secret hiding”.

29.     As to contact with relatives in Sydney, it was said in the application that the Visa Applicant kept in regular contact “to find out about their wellbeing.  The reports about me are always a problem.  My wife has warned me not to return as I will face serious problems”.

30.     The Visa Applicant signed this protection visa application on 5 November 1998. 

31.     He now says that much of what was written in the visa application is not true, in particular the following statements:

“that he was the leader of a group known as Tahrir Al Joulan - Independence of our Joulan; …..
I am known as Ismail Al-Wajede but my real name is Ismail Al-Wakede; …..

“in 1995, I was a member of a political group known as ‘Tahrir Al Joulan’ which we were able to talk to govt (sic) officials about our rights and future development” ….. and

“when I left I was questioned at the airport, but insisted to the secret intelligence that they had the wrong person, luckily I was able to leave the country”.

32.     Indeed the Visa Applicant says that he had an interview with the agent Mr Maarbini during which he was asked about his situation in Syria.  He gave the agent information to the effect as he said in his evidence before the Tribunal, that he told Mr Maarbini that he was afraid of going back to Syria because:

“about three months after being in Australia my file was opened, the file from Kanatra.  I was seeking our rights in 1992 in Kanatra our city to give us compensation for what we had lost in 1976, houses, what we lost liberated in 1973 the Syrian Army liberated the city but we received no compensation.  In 1991 I was 24 years old, I realised that we had not been compensated and I started speaking.  My words got to the Syrian police and they took me for questioning.  If it came out it would lead to a lot of questioning.  In 1993 I was banned from leaving the country until October 1996.  I was supposed to tell them if I left the country.  I left in 1997 without telling them and that is why they opened the file.  When they knew I left the country they opened my file.  I became fearful.  When I went to see Mr Maarbini I showed him the visa and told him.  Mr Maarbini informed me that my application was a refugee application.  When I realised  there was a problem back home I continued with the application.  The story I told him was what I am saying now.  No more no less.  I was informed of Syrian authorities investigating through contacts.  They came to my parents’ home.”

33.     The Visa Applicant says that he signed his second protection visa application before it was filled in by Mr Maarbini.

34.     In a file note made by a delegate of the Respondent it is noted;

“Applicant claims to be a leader of Tahrir Al Joulan.  A search of the database failed to locate the existence of such a group.

He claims to have fooled the Syrian Intelligence in exiting the airport – the claims are very facile given the nature of Syrian Intelligence”.

35.     On 3 September 1999 Mr Maarbini, on behalf of the Visa Applicant applied to the Minister seeking his intervention, referring to the application already lodged and attaching copies of the above recited pages from the second protection visa application.  He concluded his letter to the Minister by stating:

“We now ask that this case is given careful consideration as the applicant’s circumstances of returning to his country of origin – Syria would pose a problem.  The compassionate and compelling reasons must be taken into account.”

THE MIGRATION ACTIVITY OUTSIDE OF AUSTRALIA

36.     The application that is the subject of the present review proceedings was made in Beirut Lebanon under date 13 December 1999.  In such application the Visa Applicant stated that he was divorced from his wife Fatima Mohammed, the period of marriage ceasing on 5 June 1998.  It is noted that in his protection visa application of  5 November 1998, he stated that this lady was his then wife.  He also stated in his 1999 application that whilst in Australia, he was working as a painter and docker.  In his evidence before the Tribunal, he denies this to have been so.

37.     The Visa Applicant was interviewed by an officer of the Respondent in Damascus on 9 January 2001.  The officer has reported that during the interview;

“…

17.  When I pressed Mr Al Wakede about the length of time he overstayed his visa, he continuously tried to attach the blame to others (for example, “they took too long with the paperwork”).  He told me he would not accept responsibility for his refugee application, because it was written in English.  I pointed out that, under Australian law, he was responsible for his actions and decisions.

18.  Mr Al Wakede confirmed that he knew he was not permitted to remain indefinitely in Australia.  He recalled having signed an 8503 (“No further stay”) agreement and was aware of what it meant, but told me he “planned all along to stay in Sydney”, regardless of the outcome.

19.  After interviewing Mr Al Wakede I reviewed the history of his application for a subclass 309 visa for permanent entry to Australia.  I examined documentation submitted by him confirming his divorce from his first wife, Fatima Mohammed, from whom he declared in his Application for Migration to Australia (dated 13 December 1999) that he was divorced effective 5 June 1998.  As a result of that forensic examination I concluded that the divorce certificate and translation are both forgeries.  The Ministry of Foreign Affairs in the Syrian Arab Republic (SRA) confirmed on 18 January 2001 that both documents are false and that the seals of the SAR allegedly affixed to them are not genuine”.

38.     In his evidence before the Tribunal, the Visa Applicant denies having any knowledge of the forgery prior to his being told about it by the Respondent.  He said that he obtained assistance from a lawyer outside the court in Damascus to apply for a divorce from his wife.  He filled in the application which he “gave to the Court and took a copy to an agent to stamp so that he could give it to the Embassy…I took the copy to the agent not just to stamp but to tie up loose ends to finalise it”..  He said that both copies were stamped by the Ministry of Justice. He gave one copy to the Court for the divorce and took the other “to prove to the Department there had been a divorce between me and my wife”..  The Visa Applicant took the document to the agent so that it could be translated and stamped.

39.     The documents above mentioned are forgeries.  The stamps were not placed on them as alleged.  This being so, the Visa Applicant could not have obtained the stamping on them as he has stated but as an integral part of the process of forgery.  A minute of the Respondent states;

“…

2.  Because of subsequent concerns I had about the legitimacy of a divorce certificate submitted by the applicant, I asked Ms Nadine Tamim, Beirut’s Senior LE Case Officer (Compliance) to request an opinion of Mr Kousay Khaddam in the Syrian Ministry of Foreign Affairs (MFA), concerning its authenticity.  On 18 January the MFA orally confirmed the document was a forgery because the stamps it bore were not those of Ministry, but appeared to have been produced by a laser printer.  Mr Khaddam was emphatic MFA stamps were made using wet seals.  Laser printed seals are never utilised.  Ms Tamim has provided a statement (Attachment B) about that consultation.

3.  The document was also shown to General Hani Ismail, Head of Procedures and Investigations Section in the Immigration and Passports Department in the Syrian Ministry of Interior.  General Ismail’s area of expertise is document examination.  The General confirmed, in a conversation with Ms Tamim and me on the same day, that the document was a forgery and that it bore the hallmarks of a series of fraudulent documents recently detected in Damascus.” 

40.     The documents were referred to the forensic document examiner Intelligence Analysis Section, Border Protection Branch of the Department.  The examiner stated;

“As a result of my examination I am of the opinion that:

A.  The rectangular and circular “Ministry of Foreign Affairs” images on documents 1 and 2 are most probably not genuine.  The use of an inkjet printer to produce endorsing or authentication stamps is highly irregular and has not previously been seen by this examiner in any genuine documents.

B.  There is an irregularity in the dates contained within the rectangular stamp images on documents 1 and 2, with the English translation at document 2 dated one month prior to the issue of document 1.

C.  Based on the above documents 1 and 2 are most probably not genuine.

Supplementary to these findings, information obtained verbally from the Syrian Ministry of Foreign Affairs indicates that they only use endorsement stamps with ink and that they have never used inkjet printers to produce any endorsement stamp.  This statement is supported by the wet stamp images of the “Ministry of Foreign Affairs” on document 3.”

41.     The Tribunal is satisfied that the Visa Applicant was a party to the obtaining of the forged documents.  The evidence given by him as to the steps he says he took to obtain stamping of the documents does not accord with the findings of the forensic document examiner or the Respondent.  The Tribunal does not accept the evidence of the Visa Applicant as to his lack of knowledge of the obtaining of false documents.

RELATIONSHIP EXISTING BETWEEN THE REVIEW APPLICANT, THE VISA APPLICANT AND THE REVIEW APPLICANT’S CHILDREN

42.     The relationship that exists between the Review Applicant and the Visa Applicant is now of five years duration.  There has been constant and regular telephone and internet contact between the parties and the Review Applicant’s children over this period of time.  The Review Applicant says that it is not possible for her to leave her life in Australia as the children are at school in this country and any such leaving would deprive the natural father of contact with them or would entail her leaving the children with their father in Australia.

43.     There is evidence to the effect that the Review Applicant is experiencing psychological stress on account of the separation and that she is receiving treatment for depression.  In her own evidence, the Review Applicant says that the Visa Applicant was part of her children’s life before he left Australia as he was living with them.  The daughter was just over one year old when he left but he has become a part of her life since that time, she finding him to be a second father and looks forward to talking to him by telephone or viewing him on the internet.  Michael was three years old when the Visa Applicant left Australia, but according to his mother remembers the time when the Visa Applicant was living with them.  He is said to look upon the Visa Applicant as his second father and has a strong bonding with him, speaking to him on a regular basis.  The Review Applicant says that she has observed the children “getting closer and closer to Ismail over the last few years and have formed a strong bond with him and look up to him and consider him as their (sic) father, they respect him and enjoy talking to him”.  The children are said to speak to the Visa Applicant approximately five times a week and view him on the internet at least once a week.  The Review Applicant says that “Ismail has shown nothing but love and kindness towards my children and treats them as if they were his”..  He spoils the children with gifts which are usually sent with people travelling to Australia or through the mail.  It is the Review Applicant’s wish that the Visa Applicant be present so they can feel the family is complete and there will be more stability for them.

44.     Speaking of the level of attachment between the Issa children and the Visa Applicant, Dr Jools, a Clinical Psychologist and Psychotherapist states:

“… it seems that both the children are very much aware of their mother’s need for Ismail.  In part therefore the children’s insistence on him as part of the family and their statements of love and of missing him reflect their mother’s needs”. 

Dr Jools spoke with the Visa Applicant by telephone and says;

“The first question that I asked him through an interpreter (he speaks Arabic) were what his intentions were towards Adriana and the children.  In answer to this he said that he was thinking of a future where he would be married to Adriana and they would live together as a family.  The second question I asked him was what he was going to do about his current marriage and in response to that he said that the only thing that ties him to his wife is the children and he no longer considers himself to be married to his wife and as soon as Adriana was free he would organise a divorce.  The third question I asked him was if he came to Australia what would he do about his relationship with his own children and he said that he would make sure that he visited them once a year and would phone them regularly and they might be in a position to come out and visit him in Australia.”

45.     Dr Jools did not speak with Mr Issa.  She said:

“in the normal process of assessing children I would interview the children’s natural father.  Adriana asked me not to do this as she believed that if Mr Issa knew of the ongoing relationship with Mr Al-Wakede he would tell her family.  She is terrified of the actions that her family including her older brothers might take if they knew of her attachment to a married Muslim man.  She is not only fearful of physical abuse but is also scared they might take the children away from her.  In this sense Adriana feels that her future stability and safety are dependant on Ismail being allowed to return to Australia”.

46.     Dr Jools in her report of 11 July 2002 opined that:

“… Adriana has a genuine attachment to Ismail and that he is important to her, in providing stability and safety for herself and for the children.  …... they are attached to him and he appears to have a good relationship with them.  The children include him in their drawings of the family.  The very fact that Adriana and Ismail have maintained daily contact over 4 years suggests that there is a real strength in their attachment to one another.  Adriana is an intelligent woman who is fluent in both Arabic and English.  She has been employed in the past and I believe is sufficiently resourceful but she would make a success of a joint enterprise with Ismail.  In summary I believe that the return of Ismail to this country would provide stability and security for Adriana and her two children Michael and Sarah.  I have no reason to doubt Adriana and the children’s attachment to Ismail – an attachment that has continued for 4 years.  My interview with Ismail convinces me that his commitment to Adriana and the children is genuine.”

47.     In her oral evidence before the Tribunal, Dr Jools acknowledged that the children’s attraction to the Visa Applicant is a reflection of the mother’s affection but believes that Michael has a real attachment with the Visa Applicant apart from that of his mother.  She said that the attachment to the mother’s needs could not be weighted against their own attachment and stated,  “Both are important”.  She was however impressed by the “fond longevity” of the relationship.  She thought that Michael would become quite depressed if the Visa Applicant did not return to Australia.  In her supplementary report of 8 March 2003, Dr Jools stated:

“Although Mr. Al Wakede has been absent from Australia for four years he is still a major emotional presence in the children’s lives.  While his importance seems unchanged for Sarah (who was an infant when he left the country), he has become more important to Michael.  As I said in my earlier report in part his importance is due to Adriana’s emotional involvement and need for Mr Al Wakede.  I believe however that the fact that  the children include him in their drawings of the family and in their drawings of houses where close members of the family live ….. confirms how significant an attachment figure he is for them.

As I have stated above I believe that Michael’s need of him has intensified as in his mind Mr. Al Wakede has become the strong father figure that Michael needs to protect the whole family”..

OTHER RELEVANT FACTORS

48.     The Visa Applicant has as abovementioned frequent contact with his own children who live with their mother in a section of the house owned and lived in by the Visa Applicant’s parents.  One of his children suffers from a spinal problem and it is the Visa Applicant who takes her to Cyprus for treatment.  He is living in Nicosia at this time where he has relatives.

49.     The Visa Applicant has stated that if he is allowed to enter Australia he would propose to return to Syria on a yearly basis to visit his children and would maintain telephone contact with them.

SUBMISSIONS AND DECISIONS

50.     On behalf of the Visa Applicant, it was submitted that the Tribunal should be satisfied that he passes the character test.  It was said that the disqualifying conduct needs to be reprehensible and that conduct which might be blameworthy but which does not materially adversely affect the safety and welfare of the Australian community should not be considered to be reprehensible.  Indeed, reliance was placed upon the alleged absence of knowledge on the part of the Visa Applicant as to the nature of the documents he obtained in support of the alleged divorce. It was also said that the false and misleading statements contained in his protection visa application should not be visited upon him but seen as the fault of the migration agent, Mr Joe Samarini.  Thus, it was maintained the falsity of the claims was generated by another and was not such as to fall into the category of conduct adverse to the Applicant.

51.     The Tribunal has already stated it is satisfied the Visa Applicant was aware of the falsity of the documents presented by him to the migration authorities in support of his visa application.  He may not of have been aware of the details of the forgery but he was aware of the fact that the documents themselves were not genuine and  correct and were not documents that had been validly stamped by the appropriate authority.  The Tribunal is also satisfied that the Applicant knew or should have known of the falsity of the statements contained in his second protection visa application.  He provided the person preparing his application with information as to the position in Syria.  The matters contained in and set forth in his application are such as to mislead and were intended to mislead the Respondent.  The Applicant is not relieved of his primary responsibilities by contending that it was his agent who made the allegations and not he himself.  If he did sign the application form prior to the information being set forth in it and should have ensured that the material was made available to him before it was presented to the Department.  The Visa Applicant displayed an attitude of not accepting responsibility for the information that was presented to the authorities in support of his application for a visa.  He cannot disclaim his primary responsibility.

52.     It is true to say as it was put on his behalf that the Visa Applicant lived with the Review Applicant and her children and on the evidence cared for and maintained affection for them. However, the Tribunal is satisfied on the basis of the evidence before it, that the Visa Applicant was a party to the provision of false information to the Respondent in support of his protection visa application which information he knew to be false or should have known was false.  The Tribunal is further satisfied  that he was aware of the false nature of the divorce documents furnished in support of the present application.

53.     The Tribunal is satisfied on the evidence before it that the Visa Applicant is not of good character.

54.     The Tribunal is to then consider the factors detailed in Ministerial Direction 21 as they pertain to the exercise of its discretion.  The primary factors are the protection of the Australian community and members of it, the expectations of the community and the best interests of the children of the Review Applicant.

55.     There can be no doubt and it is the view of the Tribunal that conduct relating to the presentation of fraudulent documents lodged in support of an application for permanent residence in Australia cannot be viewed other than as being very serious.  The Ministerial Direction makes specific reference to the presentation of false or forged documents, the same acting so as may serve to frustrate the purpose and object of the Act.  The Act itself in section 234 evidences the serious nature of such conduct as seen by the legislature in providing for a maximum penalty of ten years imprisonment on conviction.  It cannot be said that the making of a false or misleading statement “is significantly less serious than conduct involving violence, drugs and other criminal behaviour” as was alleged on behalf of the Applicant.  It will of course depend upon the extent of the falsity and the extent of other adverse conduct but each is to be regarded, depending upon the relevant facts, as extremely serious.

56.     This is particularly so in the context of the Refugee Protection visa applications.  The convention and relevant legislation is intended to protect those genuinely in need.  The making of false claims and false representations can only lead to delay in a consideration of applications that are with merit, thus causing stress to genuine applicants.  The use of the migration system to serve unwarranted ends can only be seen as serious conduct deserving of adverse attention.  The Visa Applicant has clearly demonstrated a willingness to make false claims and present fraudulent documents in support of his applications to seek residence in Australia.  He has demonstrated a preparedness, notwithstanding the serious penalties that apply, to act in breach of the law to seek to facilitate the carrying into effect of his objectives.  The Tribunal sees no reason why he would not seek to take advantage of such means as may effect the ends he would desire to achieve. 

57.     The making of false representations in the visa applications were not so made without the assistance of others.  The refusal of a visa on this account may well discourage such utilisation and cooperation in the future.  The obtaining of the forged documentation in support of the subject application was carried out with the assistance of others and for a fee.  If it is seen that such conduct is a factor which may well lessen the chances, if not preclude, an applicant being granted a visa then this may well deter others who may be minded to, or assist in the making of false claims or the presentation of fraudulent documentation.

58.     It was maintained on behalf of the Respondent that the seriousness of the conduct engaged in by the Visa Applicant is such that the expectation of the Australian community would be that the Applicant’s application should be refused.  On behalf of the Applicant, it was said that the Act is to be administered fairly and humanly and that the Visa Applicant should not be prevented from being reunited with the Review Applicant and her children.  The Australian community, it is said, expects family unity to be given a very high priority “especially where there are no suggestions of criminal convictions or attempts to hide from authorities in Australia”.  The latter is most certainly true but it is not only a matter of there being no criminal convictions or attempts to hide that are relevant in this context.  The Australian community does not expect that a person who makes false and misleading statements or is aware or should be aware of the making of false or misleading statements on his behalf and who is a party to the creation of forgeries all in aid of obtaining residence in Australia should be granted a visa.

59.     The Tribunal is satisfied that the seriousness of the conduct engaged in by the Visa Applicant is such that the expectation of the Australian community would be that an application for a visa should be refused.

60.     It was to the best interests of the children of the Review Applicant that Mr Knoll of Counsel, appearing on behalf of the Review Applicant, directed the substance of his submissions.  The Tribunal is satisfied that even be it, the children are not the biological children of the Visa Applicant, their welfare is a material consideration in this application.  The evidence of Dr Jools is to the effect that the children and more particularly the boy would be adversely affected if the Visa Applicant is not permitted to re-enter Australia.  It is maintained that the distress being  experienced by the Review Applicant is reflected in her conduct and demeanour as perceived by the children and this further adversely affects their welfare.

61.     Thus it is maintained that the best interests of the children would be served if the Visa Applicant be permitted to re-enter Australia. 

62.     There is not any evidence before the Tribunal as to the attitude that would be taken by the children’s father, Mr Issa, in the event of the Visa Applicant becoming part of their household in Australia.  There are no orders of the Family Court of Australia referable to contact in existence at the present time and the extent to which one or other of the parents has contact with the children is a matter of agreement reached between them.  Mr Knoll said on behalf of the Review Applicant that “the natural father will not provide the male role model that Michael needs”.  There is no evidence to this effect.  Nor can it be maintained that the Visa Applicant “is the male in the family that the child wants and needs”.  The children have not spent time with the Visa Applicant since 1999 and have maintained contact with him only by way of  telephone and internet linkage.  On the other hand, they do have frequent contact with their natural father and spend measurable periods of time with him. 

63.     The factors thus already considered, namely as they relate to the protection of and the expectations of the Australian community and the best interests of the children are the primary considerations that are to be assessed in the weighing up exercise.  There are however other considerations that need to be taken into account. In the present application, these relate to the effect physically and psychologically of a visa refusal upon the Review Applicant and other relevant persons.  On the evidence before it, the Tribunal is satisfied that the Review Applicant would suffer hardship and distress in the event the visa is refused.   There is not any evidence before the Tribunal as to the effect of the grant of a visa to the Visa Applicant on his children living in Syria and more particularly his daughter who suffers from spinal injury.  However, these are factors that warrant consideration even be it they be given individual weight less than that given to the primary considerations.

64.     Having considered and assessed the various factors and the significance to be attached to them, the Tribunal is satisfied that the gravity of the Visa Applicant’s conduct as it related to the Protection Visa applications, the false and misleading statements, the subject application being supported by forged documentation, as well as the inaccuracies earlier identified are such as to outweigh the interests of the children of the Review Applicant.  The Tribunal has not come to this decision lightly.  It has sympathy for the Review Applicant and is very mindful of the view expressed by Dr Jools.  However, the Tribunal sees it as necessary and essential that the migration legislation be respected by persons making application for entry into Australia and in the event of there being evidence of conduct contrary to the legislative provisions and of sufficient gravity that those matters may well and in the present case do override the interests of the children.  This is not to say that the Tribunal does not appreciate that the children will be affected by the refusal of the grant of a visa, but does note that such children have advanced in their years in the absence of the Visa Applicant, have their parents living with or nearby to them in Australia and are cared for by such parents even be it the parents are separated.

65.     For these reasons, the decision under review is affirmed.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. RNJ Purvis QC, Deputy President.

Signed:          (Sgd) Kwai-Ling Wong             .......................................................................................
  Associate

Date/s of Hearing  10 March 2003
Date of Decision  8 May 2003
Counsel for the Applicant          Mr David Knoll
Solicitor for the Applicant           Gilbert Tobin Lawyers
Solicitor for the Respondent     Clayton Utz Lawyers