Kahila and Minister for Immigration and Multicultural Affairs - [2001] AATA 83

DECISION AND REASONS FOR DECISION [2001] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1178

GENERAL ADMINISTRATIVE DIVISION )

Re      RITA KAHILA
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent
DECISION

Tribunal Deputy President J Block

Date8 February 2001
PlaceSydney

Decision The decision under review is affirmed.

........…..[sgd. J Block].............
Deputy President
CATCHWORDS
IMMIGRATION - spouse visa - refusal on character grounds - whether the visa applicant fails the character test - false protection visa application - disregard for Australia's immigration laws – hardship to applicant and applicant's family

Crimes Act 1914 – section 4AA
Migration Act 1958 – sections 234, 235, 417, 499, 501

Re Abdul-Kader and Minister for Immigration and Multicultural Affairs [2000] AATA 1055
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956
Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023
Re Msumba and Minister for Immigration and Multicultural Affairs [2000] AATA 87
Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967

REASONS FOR DECISION

8 February 2001 Deputy President J Block

(a)      This is an application for the review of a decision by a delegate of the Respondent made on 13 July 2000, refusing an application for a subclass 309 spouse visa by Mr Touni Kahila ("Mr Kahila"), and in respect of whom the Applicant, his wife, was the sponsor.
(b)      The Applicant was represented by Mr Robert Beech-Jones of counsel, (instructed by Janice Vu & Associates, solicitors), while the Respondent was represented by Mr Michael Snell of Sparke Helmore, solicitors.
(c) The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
·Exhibit A1         is a statutory declaration by Joseph Maalouf, the Applicant's father, dated 4 November 2000;
·Exhibit A2         is a statutory declaration by Marie Therese Maalouf, the Applicant's mother, dated 21 October 2000;
·Exhibit A3         is a statutory declaration by Tony Andrew Maalouf, the Applicant's younger brother, dated 21 October 2000;
·Exhibit A4         is a statutory declaration by Rose Maalouf, the Applicant's younger sister, dated 21 October 2000;
·Exhibit A5         is a statutory declaration by Jamile Bedros, a family friend of both the Applicant and Mr Kahila, dated 28 October 2000;
·Exhibit A6         is a letter by Dr Omar M Bakira, a medical doctor of Damascus, Syria, dated 17 October 2000 and accompanied by a translation from Arabic into English;
·Exhibit A7         is a letter by the Mayor of Damascus dated 15 October 2000 and accompanied by a translation from Arabic into English;
·Exhibit A8         is a character testimony by the Patriarchal Assistant to Bishop Moussa Khoury of the Greek Orthodox Patriarchate of Antioch and Pan-Orient, Damascus, Syria, dated 16 October 2000 and accompanied by a translation from Arabic into English;
·Exhibit A9         is a character testimony by Massoud Nassif, Attorney-at-Law, dated 17 October 2000 and accompanied by a translation from Arabic into English;
·Exhibit A10       is a statutory declaration by Mr Kahila (undated);
·Exhibit A11       is statutory declaration by the Applicant dated 5 December 2000;
·Exhibit A12 consists of a number of photographs of the Applicant and Mr Kahila in Australia and Syria.

(d) In the T Documents the party cited as the Respondent was the Department of Immigration and Multicultural Affairs. Since the relevant decision was made by a delegate of the Respondent Minister, he is cited in these Reasons as the Respondent.
(e) Mr Kahila gave evidence by telephone link from Syria and an interpreter assisted him in the Arabic language. He does perhaps have some limited knowledge of the English language, indicated by the fact that on a very few occasions he answered in English without waiting for the interpreter to translate the question into Arabic.

(a)      I begin, in order to set out the scene and the background, by including four documents in full; those documents are:
(i)The Applicant's Statement of Facts and Contentions, which reads as follows:
The Migration Act 1958 (Commonwealth) will be referred to as "the Act". Unless otherwise stated, page references are to the "T" documents.
THE ISSUES IN THE PROCEEDING
1.The Applicant is the wife of Touni Kahila ("Kahila"), a citizen of Syria currently living in Syria. On 2 November 1999, Kahila applied for a Spouse visa, subclass 309 visa. Kahila was sponsored b the Applicant (T.19). On 13 July 2000, a decision was made to refuse the gr t of a visa in accordance with Section 501 (2) (a) (ii) of the Migration Act and clause 4001 of Schedule 4 of the Migration Regulations (T28).
Accordingly, the issues raised by the application are:
(i)   Whether the Tribunal is satisfied that Section 501 applies to Kahila having regard to Subsection 501 (2) (a) ( i).
(ii) If (i) is answered adversely to Kahila (and the Applicant) whether the Tribunal is inclined to exercise the discretion conferred by subsection 501 (1) of the Act and clause 4001 of Schedule 4 of the Migration Regulations to grant a spouse visa to him.
FACTS
1.The Applicant was born in Beirut, Lebanon on 8 February 1975. She came to Australia on 14 July 1977 2 ½ years of age. She became an Australian citizen in 1983 (Page 178).
2. The Applicant's two parents and her live siblings all live in Australia and are Australian citizens. The Applicant does not have family members overseas (Page 152).
3. The Applicant has been working as a Bank Officer for the National Australia Bank from 3 February 1995 to current (Page 178).
4. Kahila was born in Damascus, Syria on 20 January 1971 (T21). He went to school from 1977 to 1984. He started working at about the age of 14 years in Syria (Pages 144-145). At the age of 16 years, his father died. Kahila's mother remained a widow. Kahila's two siblings, a brother and sister are both married and live in Syria (T21 ).
5. Kahila completed his military service in 1990-1992. He went to Kuwait from January 1993 to May 1994. Other that the time spent in Kuwait, the Kahila lived in Syria until his travel to Australia in 1996 (Page 186).
6. On 25 April 1996 Kahila entered Australia with a visitor visa valid until 25 July 1996 (Page 164). He came to visit relatives, uncles and aunts.
7. On 19 July 1996 Kahila sought an extension of his visitor's visa; this was granted and he was permitted to remain in Australia until 25 January 1997. He was issued a further visitor extension on 22 January 1997 valid until 24 April 1997 (Page 165).
8. On 24 February 1997 Kahila lodged a Protection Visa application; this was refused on 18 June 1997 (T11). Kahila was issued a Bridging A visa, on 24 February 1997 valid until a review authority had made a decision on his case ( page 166).
9. On 8 July 1997 Kahila appealed to the Refugee Review Tribunal ("RRT"); the decision not to grant him a Protection Visa was affirmed by the RRT on 2 June 1998 (T12).
10. In 8 July 1998 Kahila sought ministerial intervention in respect of his application (T14). In a letter dated 22 July 1998, the Minister acknowledged receipt of his application (T15). The Minister decided not to intervene in a letter to Kahila's solicitors dated 4 March 1999 (T17).
11. The Applicant met Kahila in December 1998. They were engaged in April 1999. They had an elaborate church wedding and reception on 17 October 1999 in Sydney (Page 183 and T24).
12. On 11 October 1999 Kahila was granted a Bridging E visa valid till 19 October 1999 (Page 167).
13. The Applicant and Kahila departed Australia on 19 October 1999 and went to Syria (T30 & T31). The Applicant returned to Australia on 9 December 1999 (T31).
14. Kahila's migration application and the Applicant's sponsorship was lodged at the Australian Embassy in Beirut Lebanon on 2 November 1999 (T18).
15. In his application, Kahila provided a clear police clearance from the Australian Federal Police (Page 175), and from the Syrian Ministry of the Interior (Page 205). He also provided From 80 for further Australian police checks to be done (T20).
16. The Embassy made a preliminary decision that the marriage between the Applicant and Kahila appeared genuine (Page 190)
17. Kahila was interviewed by the Australian Embassy in Damascus on 10 April 2000 (T25).
18. On 13 July 2000, Kahila was informed that a decision had been made to refuse the grant of a provisional spouse visa on the grounds of Section 501 (2) (10 (ii) of the Migration Act (T28).
19. In the decision of 13 July 2000, the primary decision maker found that the Applicant met Kahila during May 1997 (Page 209) and then stated that they had met during 1999 (page 210). The primary decision maker also indicated that the Minister decided not to intervene on 9 June 1998 which date is incorrect.
20. On 28 July 2000, the Applicant lodged an Application for Review of Decision at the Administrative Appeals Tribunal (AAT).
CONTENTIONS
21. Having regard to the entirety of Kahila's general conduct, it is submitted that the Tribunal should be satisfied that he is of good character, in particular:
(a)His character references from:
·     The Applicant
·     Joseph Maalouf                 (Applicant's father)
·     Marie Therese Maalouf      (Applicant's mother)
·     Rose Maalouf                    (Applicant's younger sister)
·     Tony Andrew Maalouf        (Applicant's younger brother)
·     Jamile Bedros                    (Family friend)
·     Bishop Moussa Khoury
·     The Mayor of Damascus
·     Dr. Omar M Bakira
·     Massoud Nassif                 (Attorney-at-law)
(b)His close and loving relationship with the Applicant in a genuine and on-going marriage.
(c)His close relationship with the Applicant's family.
(d)His sincere regret and remorse in providing incorrect details in his protection visa application.
19.    Further or in the alternative, it is submitted even if the Tribunal is satisfied that Kahila is not of good character, it should nevertheless not refuse to grant him a visa because of:
·     The matters set our in paragraph 18 above;
·      The interests of the Applicant, and the impact that a refusal would have on her life and her ability to settle in Australia and have a family in Australia.
·     The benefit to the community, the Applicant and her family, of allowing the application.
(ii)         The Respondent's Statement of Facts and Contentions which reads as follows:
1   FACTS
1.1 The Applicant, Rita Kahila was born in Beirut, Lebanon on 8 February 1975. She came to Australia on 14 July 1977 and became an Australian citizen in 1983.
1.2 The Applicant's husband, Touni Kahila was born in Damascus Syria on 20 January 1971 and is a Syrian citizen.
1.3 Mr Kahila worked as an aluminium worker in Syria from 1985 to 1990. In March 1990, he was conscripted to join the Syrian army. He completed his military service in July 1992. He continued working in Syria as an aluminium worker until April 1996 except for the period between January 1993 and May 1994 when he worked in Kuwait.
1.4 On 25 April 1996 Mr Kahila arrived in Australia as a visitor with a lawful stay until 25 July 1996. He sought an extension on 19 July 1996 and was permitted to remain until 24 April 1997 on a tourist long stay visa with a no work condition.
1.5 On 24 February 1997, Mr Kahila applied for a Protection Visa. This application was refused on 18 June 1997 on the basis that there was no indication that he would face any persecutory treatment by the Syrian authorities if he returned to Syria.
1.6 On 6 July 1997, Mr Kahila applied to the Refugee Review Tribunal (RRT) for review of the delegate's decision. On 2 June 1998, the RRT affirmed the decision not to grant a protection visa.
1.7 In a letter dated 8 July 1998 Mr Kahila sought ministerial intervention under Section 417 of the Migration Act 1958. On 4 March 1999, Mr Kahila was advised that the Minister had decided on 16 February 1999, not to exercise his power in this case.
1.8 On 11 October 1999 Mr Kahila was granted a Class WE Bridging Visa Subclass 050 permitting him to remain in Australia until 20 October 1999 with a no work condition.
1.9 On 17 October 1999 the Applicant and Mr. Kahila married at St. Nicholas Orthodox Church, Punchbowl NSW.
1.10 On 19 October 1999, the Applicant and Mr. Kahila departed Australia for Syria.
1.11 On 2 November 1999 the Australian Embassy, Beirut received an Application for Migration to Australia from Mr Kahila. This form was signed by the Applicant and co-signed by Mr Kahila on 29 October 1999. The Applicant lodged a US Partner (Provisional) 309 Spouse (Provisional) application.
1.12 The Applicant returned to Australia on 9 December 1999.
1.13 On 10 April 2000, Mr Kahila was interviewed by the Australian Embassy in Damascus.
1.14 On 13 July 2000, Mr Kahila was notified of the decision to refuse the grant of a visa in accordance with Section 501 of the Migration Act 1958.
1.15 On 28 July 2000 the Applicant lodged an Application for Review at the Administrative Appeals Tribunal (AA T).
2      THE LAW
The relevant legislation and Direction 17
Subclass 309(Spouse) Visa
2.1    Pursuant to subclass 309.225 of the Migration (1994) Regulations, an applicant for a spouse visa must satisfy public interest criterion 4001 at the time of the decision. That criterion in turn requires an applicant to satisfy the Minister that he or she passes the Character test.
2.2 Section 501(1) of the Act states as follows:
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.
Note: The Character test is defined by subsection (6).
Relevantly, Section 501 (6)(c) of the Act states as follows:
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.
2.3    The question of whether a person is of good character is answered by reference to the Ministerial direction on the Character test.
2.4 Section 499(1) of the Act states as follows:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
2.5 Direction number 17 of 1999 ("Direction 17") was made pursuant to Section 499 of the Act on 17 June 1999. Direction 17 provides guidance to decision-makers, in making decisions to either refuse or to cancel a visa under Section 501 of the Act. Direction 17 is binding on all decision-makers, including merits review tribunals such as the AAT.
2.6    Direction 17 consists of 2 parts. Part 1 provides directions on the application of the Character test. Non-citizens who are being considered under Section 501 must satisfy the decision maker that they pass the Character test. If a non-citizen does not pass the Character test, decision makers are then to exercise discretion on whether to refuse or to cancel a visa. In doing so, decision makers are to take into account both primary and other considerations. Part 2 provides directions as to what those considerations are, and what weight is to be given to them.
2.7    Before finding that a non-citizen is not of good character due to their past or present general conduct (Section 501(6)(c)(ii)), Part 1 of Direction 17 requires a decision maker to have regard to all the relevant factors of the case. This includes evidence of recent good character, but it also specifically includes the following:
(a) Whether the non-citizen has been involved in activities indicating contempt, or disregard for the law or for human rights.
(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.
(c ) Whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined by subsection 5(1) of the Act.
2.8 Mr Kahila made an application for a protection visa containing claims which he now admits were untrue. Mr Kahila claimed that he would suffer persecution on the basis of his religious beliefs (see T7). A delegate of the Minister refused that application. Mr Kahila continued with this deception and lodged an application to the Refugee Review Tribunal (see T12). He presented false claims to the Tribunal in his application and at the hearing before the tribunal. The application before the RRT was successful. He gave evidence before the RRT, testifying as to the same false grounds, even though he knew they were not true. After failing before the RRT, an application was made under Section 417 of the Migration Act 1958 ("The Act') was made to the Respondent. After the application to the minister under Section 417 of the act failed, Mr Kahila left Australia and lodged a spouse Application in Beirut. He was interviewed by the Australian Embassy in Damascus (see T22) and continued to adhere to his false claims. It was only in his Statutory Declaration provided to this Tribunal that he has admitted that the basis of this claim for protection visa were entirely false.
2.9    As to whether Mr Kahila's belated confessions some 3 years after the event in these current proceedings is evidence of recent good conduct is doubtful. His current statutory declaration Is evidence of a continuing pattern of attempted deceit and in particular his failure to accept responsibility for his actions. Paragraph 48 of his statement reads as follows:
"I thought that if I gave he exact same words, I would be able to stay in I the country, I did not really want to do this but I had no other way to stay I in the country .It is not exactly Sam Issa' s fault that the wrong information was given. I really thought that if I said it I would be allowed to stay. Sam Issa had said that if I say those things I would be I allowed to stay in the country and I had believed him."
2.10 Mr Kahila knew that the information that was presented to the Department was untrue, yet he was willing to lie to achieve his objective, of remaining in Australia at any cost. To apportion responsibility for his actions to Mr Issa is quite unacceptable. Mr Kahila knew that deception was intended. Even if he was prompted to embellish his story by Mr Issa he knew that the details of the story were false land took no steps to correct them.
2.11 The fact that he made admissions in his current Statutory Declaration does nothing to add credit to an assessment of his present general conduct. Mr Kahila has only now told the truth to achieve his goal of returning to Australia. I Mr Kahila went to dishonest lengths to prolong his stay and yet still blame Mr Issa for his predicament. His failure to accept personal responsibility is itself a reflection of his enduring moral quality.
2.12 In determining whether the character test has been passed, the Minister has directed that the Tribunal Should consider breaches of the immigration law and the making of an Application for the grant of a visa of any kind based upon a bogus document, or the misleading of a false or misleading statement, as constituting a failure to pass I the character test. On any view of the facts, therefore, Mr Kahila must fulfil the subsection 501(6) test. He knowingly provided false information in his application for a protection visa. He knew when he lodged that applicati6n that he was wrongly applying for Australia's protection as a refugee. He did not take advantage of any of the occasions when he could have rectified the false statements and he did all this merely to extend his stay in Australia for as long as possible. This conduct demonstrates a blatant disregard for Australian immigration laws. It amounts to a failure to pass the Character test.
2.13 Under part 2 of Direction 17, if a non-citizen does not pass the Character test, decision makers must have regard to the following primary considerations when exercising the discretion on whether a non-citizen should be permitted to enter or to remain in Australia:
(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 a person under consideration, the best interests of the child or the children.
2.14 In relation to the primary consideration of the protection of the Australian community, the following factors are relevant:
(a) The seriousness and nature of the conduct;
(b) The likelihood that the conduct will be repeated (including any risk or recidivism); and
(c) Whether visa refusal or cancellation may prevent or discourage similarly conduct (general deterrence).
Relevantly, offences under the Act, including the making of a false or misleading statement in connection with an entry or stay in Australia is considered to be a serious offence. The general deterrence factor also operates to deter others from committing similar offences.
2.15 In relation to the primary Consideration of the expectation of the Australian community, the non-citizen is expected to obey Australia's laws while in Australia.
2.16 As to clause 2.3(b) of Direction 17, the Australian community expects a non-citizen to comply with Australian law and would regard Mr Kahila's persistent and wilful disregard of the Act over so long a period unfavourably. The breaches by Mr Kahila were by no means isolated; on the contrary they took place throughout his 3 and a half-year stay in Australia. In regard, however, to the primary considerations I relevant to this case - the protection of the Australian community and the expectations of that community – the Respondent submits that this is a case where significant weight should be attached to the issue of general deterrence. This is not the case of an innocent victim caught up in Immigration malpractice, but was rather a willing recipient of advice and assistance that allowed him to fulfil his ambitions remaining in Australia for a number of years
2.17 In relation to the best interests of the child this primary consideration comes into effect if the child would be less than 18 years of age when the decision is intended to come into effect. This primary consideration, however, is not applicable to this case.
2.18 When considering whether to review the visa, other factors, although not primary considerations, may be relevant. These are to be given less weight than primary considerations, but they may include:
(a) The disruption to the non-citizen's family, business and any other ties to the Australian community;
(b) The genuine marriage to, defacto or interdependent relationship with an Australian citizen or permanent resident;
(c ) The degree of hardship which would be caused to immediate family members, lawful residents in Australia;
(d) The family composition of the non-citizen's family, both in Australia and overseas;
(e) The likelihood of the non-citizen seeking to evade any outstanding legal matter or ongoing liability;
(f) The likelihood of the citizen breaching any conditions attached to the outstanding legal or ongoing matter, any cost or bilateral implications of such a breach;
(g) The nature and seriousness of the offence (s) or alleged offences (s); (h) Any evidence of rehabilitation and any recent good conduct;
(i) Whether the Application is for a temporary visa or permanent visa;
(j) The purpose and intended duration of the entry or stay in Australia, including any significant compassionate circumstance; and
(k)The fact that the non citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at Section 200/201 of the Act or the visa refusal and cancellation provisions at Section 501.
2.19 The decision maker is also required to consider whether there are any international obligations relevant to the non-citizen. Such obligations may arrive, for instance, pursuant to the international convention civil and political rights, the convention against torture and the refugee's convention.
2.20 The emotional hardship which Mr Kahila undoubtedly will suffer must be discounted heavily by the fact of his pre-knowledge of the likely consequences. Having regard to the fact that Mr Kahila' s deliberate actions were the cause of his present predicament his hardship may also be discounted. The Applicant similarly will be emotionally affected. It should be l noted that the Applicant could if she so desired live with Mr. Kahila in Syria. The emotional and possible financial hardship which the Applicant may suffer, (we note that the Applicant forwards money to Mr. Kahila) as a result of continued separation from her husband is in any event of not such a countervailing consideration at they would outweigh the primary factors to which the Tribunal must have regard.
2.21 It is submitted that there is little doubt that it would be a legitimate expectation on the part of the Australian community that Mr Kahila should not be allowed to enter Australia. This is specially the case when Mr. Kahila and his advisers have utilised the procedures established under the convention relating to refugees. Australia has established a process to determine the legitimacy of claims made for protection visas by persons reaching Australia. It is an concern to the Australian community at large, that certain individuals should abuse this assessment process in such a flagrant and deliberate manner in order to obtain benefits, such as residency and the right to work, to which they would not otherwise be entitled. The Australian community has every reason to send a very strong deterrent message to any such non-citizens contemplating engaging in migration malpractice, that if detected they can anticipate little if any sympathy or further assistance in achieving their goal of becoming residents of this country.
2.22 It might be said that Mr Kahila genuinely wishes to be reunited with his wife, however his expression of remorse must be treated with some reserve. It is likely that he is remorseful ore about the consequences of his actions than about the actions proper. It seems likely, on a balance o probability, that he committed numerous breaches of the Act in order to allow his stay in this country. Direction 17, (see in particular the 4th the dot point in clause 1.9(b) of Direction 17) obliges the Tribunal to treat these offences as very serious. They appear in the same context as other crimes, which might otherwise be thought to be more serious. I must be borne in mind that the whole process is costly to Australia both in terms of time and money.
2.23 In summary then, the Respondent submits that Mr Kahila's flagrant and persistent breaches of the Act are outweighed by any relevant countervailing factors, and in particular the interests of the Applicant. Accordingly it is submitted that the decision under review should be affirmed.
(iii)Exhibit A10, which is Mr Kahila's statement, reads as follows:
Personal Details prior to coming to Australia in 1996
1.I was born in Syria on 20 January 1971.
2.My father is deceased. He died in Australia in May 1988. My mother is a widow. My mother has a small convenience store where she works to support herself. My brother and sister are i both married. My brother studied to become a priest. My sister studied to be a French teacher and worked as a French teacher for about a year before she married.
3.I went to school until about 1985. I topped going to school in 1985 when I was about 14 years old because my father became very ill with heart problems. He could not work and there was no one else to support the family. My two siblings were at a higher level at school and it was felt that they could most probably finish their studies with some financial support.
4.So I left school to work to support my mother and my two siblings. The decision to leave school was made by me. My life was very hard for the first few years because I had to work and because I was young I was not paid much money.
5.My father's relatives in Australia sponsored my father to Australia in 1985 to treat his health condition. They paid for his medical treatment. My father did not return to Syria after he went to Australia. He passed away in 1988 and is buried at the Rookwood Cemetery in Sydney. My mother, my siblings and I could not visit him while he was in Australia because we did not have money to do so.
6.When I came to Australia in 1996, I went many times to visit my father at the Rookwood Cemetery at Christmas, Easter, Father's Day and on other occasions. I took my wife Rita to visit my father's tomb in September 1999.
7.I completed my military service in the period 1990 to 1992.
8.I went to work in Kuwait in the period January 1993 to May 1994.
9.I started working for myself in Syria and had my own aluminium business where I would make building material in aluminium like window frames.
10.By the time I came to Australia my other and siblings were able to care for themselves as they were able to work to support themselves. After my father passed away, my brother asked for his 1/2 share of the family home. I then borrowed money from the bank to pay my brother his half share. I still owe some money to the bank for this loan. I also sold my aluminium business to help to pay for this 1/2 share of the house so that my mother would have a place to live.
11.When I came to Australia I wanted a fresh start to my life. I had had a difficult life before I came.
Entry to Australia and Migration History
12.I entered Australia on 25 April 1996 on a visitor visa.
13.I was so happy being in Australia. I loved the country and wanted very much to stay.
14.After advice from relatives, I went to see a legal firm and sought advice about how I could stay in Australia. My solicitor was Mr Sam Issa.
15.I lodged a protection visa application on 24 February 1997. This application was not successful. I do not recall being interviewed during the processing of this application.
16.On 8 July 1997, I lodged an appeal t the Refugee Review Tribunal. I recall I was interviewed for about half an hour by the Tribunal member. My application was rejected on 2 June 1998.
17.I then asked my solicitor to lodge an appeal to the Minister. In a letter dated 22 July 1998, the Minister's office acknowledged receipt of my Ministerial appeal.
Response to my claims for a Protection visa put to the Department of Immigration & the Refugee Review Tribunal
18.I cannot read English. I cannot write English. I can read and write in Arabic.
19.I can speak some English.
20.When I prepared the Statement on T104 to T106 I spoke to my solicitor Mr Sam Issa in Arabic
21.I told him that I wanted to stay in Australia. Mr Issa asked me what were the facts in my case to allow me to stay in the country and not to go back to Syria. He wanted to know what problems I had in Syria.
22.I asked the solicitor to help with my case. I told him that I had problems because I had courted a Muslim girl and her family were upset with that. There were arguments and problems about that. He said that it was pretty basic arguing about a girl. It had to be a bit more dramatic to be allowed to stay in the country.
23.I told him about my basic lifestyle. Sam Issa said that he had to have some argument with authorities to be able to stay in the country.
24.I told Sam Issa that:
"I was born on 20.1.1971 and a Syrian national. I was single and never married. I said I was a former member of the Eastern Orthodox Church. I said I was a Born Again Christian." This information was true.
25.I said my occupation was as an aluminium worker.
26.I had completed military service in 1991.
27.I said that since 1986 my family and I had been living in Asah, Batoun, Syria. My family were devoted Orthodox Christians and my brother was studying the priesthood in 1992. This was true.
28.In the period 1989 to 1991, I was in the military service but I had no problems. I was never ridiculed. I was not beaten by anyone.
29.I did not say that I was placed in detention or in isolation or faced ill treatment. I never had this experience. There was no religious discrimination against me in the army because of my religion.
30.After military service I did go to Lebanon to Beirut to see my friends. They were born again Christians. I did not join the Born Again Christian Movement in Beirut - I was not a member but I would attend their meetings about 2 to 3 times a week.
31.I did not have conflict with my family because I became a Born Again Christian.
32.I did not meet Born Again Christians in Damascus after I went to Beirut on the one occasion to meet with the Born Again Christian group.
33.In 1993 I went to Kuwait to work to work in an Aluminium factory. I worked there for 10 to 12 months. I was not dismissed from my job. They used to look at me and say I was a Christian but there were no arguments. I left the job voluntarily because there was not enough work there. I was not detained or placed in custody by Kuwaiti police. My visa was not cancelled by Kuwaiti Immigration.
34.I do not know Jon Boutros personally. I heard that he is a Born Again Christian. I was told he was a leader of the Born Again Christian group in Syria. But I have never met this man or been a part of this group. I did not join any Born Again Christian group in Syria.
35.I did not pray outside a Muslim mosque when Jon Boutros was detained. I did not know he had been detained.
36.I did have a Muslim girlfriend. I do not remember her name. There was conflict with her family. They threatened me - they threatened to kill me. This was because I was a Christian and the girl I was courting was a Muslim. The girl was about 17 years old. I was about 19 years of age. I met this girl just before I went into the army. The problem with her family lasted for about 2 years even though I had only courted her for 2 months.
37.The girl's family was not part of the Islamic Brotherhood. I do not know of that. The people who harassed me were her relatives and friends. I had been in the army for about 1 year when this happened. I just had arguments with them. But no property was targeted. I was hit about 2 or 3 times, punched but not seriously enough to see a doctor.
38.My work premises were not attacked in 1994 or 1996. My business was not set on fire. My car was not set on fire in 1995.
39.I do not know anything about the decision in August 1994 by the Born Again Christian group to build a church. I did not keep in touch with Born Again Christians in Syria because I did not b long to any group.
40.I told the above information to Sam Issa.
41.Sam asked me about my life, about my business. Sam said that to succeed the case needed to be more dramatic - to say that my car had been burnt, my business had been burnt. Sam said it would be best to say that.
42.After Sam read the statement to me, I said that there was a bit too much exaggeration. Sam said that it was better to do it and he knew his job.
43.When I came to Australia I did not belong to any Born Again Christian group. I never went to a Born Again Christian church. I just did not want to join a Born Again Christian group after I came. It was a new environment for me in Australia. I had lost interest in joining a Born Again Christian group before I came to Australia. There is no reason for that.
44.I went back to church after I met my wife Rita. It was the Orthodox Church.
45.I had no fears on returning to Syria.
46.I was interviewed once, at the Refuge Review Tribunal. The interview was for about ½ hour. There was an interpreter at the interview. I said what was written in the papers. Sam Issa had read my Statement to me in Arabic and I wrote it down. I re-read my Statement at the interview.
47.The Tribunal Member said that they would study the case and give me a call back.
48.I thought that if I gave the exact same words, I would be able to stay in the country . I did not really want to do this but I had no other way to stay in the country. It is not exactly Sam Issa fault that the wrong information was given. I really thought that if I said it I would be allowed to stay. Sam Issa had said that if I said those things I would be allowed to stay in the country and I had believed him.
49.Sam Issa went to the Hearing with me. I did not know what he said because he spoke in English. But Sam knew the true story of my case.
50.When I was rejected I was a bit upset. Sam had told me that I would win the case. I had an argument with Sam. I asked him why my case was refused when he told me that the case would be won. He said that that it was "their decision" and it did not have anything, to do with him. Sam told me I could lodge a Ministerial application and I asked Sam to lodge this for me. I do not know what Sam wrote.
Meeting and Courtship with my wife Rita
51.I had met Rita in December 1998. Rita's parents and Rita were visiting my friends Jack and Jamile Bedros. They were also good friends of Rita's family.
52.When I met Rita for the first time, I was instantly attracted to her. I felt my heart go out to her. I wanted to see more of her.
53.I asked the Bedros family to properly introduce me to Rita's family because this was a customary way of indicating a respectable and serious wish to court Rita.
54.I then went to meet Rita's parent and Rita at their home.
55.I talked to Rita's parents and to Rita and asked for permission to court Rita. I decided at that time that I would tell Rita's family about my immigration status as I wanted to be up front about what was happening to my migration situation and I did not want to create any problems later on.
56.When I visited Rita, I sat next to Rita and her parents sat opposite me in their home. I showed them my passport. I also showed them a letter given to me by my solicitor Sam Issa which I could not read as it was in English. I do not recall how many pages were in the letter. I said in words of similar meaning:
"I have come on a holiday. I am applying for a refugee visa."
57.I did not tell Rita and her pare all the details of what I had said in my protection visa application. However, they were aware that I had lodged a protection visa application and I was waiting for the result.
58.By March 1999, Rita and I were taking about getting married. We were in love and happy with each other.
59.In about March or April 1999, I received a letter from my solicitor Mr Sam Issa that the Minister had rejected my application to stay in Australia. I brought the Minister's letter to Rita so that she could read the letter as I did not understand exactly what the letter raid or meant.
60.After Rita read the letter she said:
"I am worried about this letter. I am worried that you have to go back and that we will have problems."
61.I was upset when Rita told me what the letter from the Minister said. I said to Rita:
"I am also shocked at the response from the Minister because my solicitor had promised me that I would be alright."
62.Because Rita and I did not fully understand the decision and what it meant, I asked Rita to ring the Department to find out what the decision actually meant.
63.Rita told me that she had telephoned the Department of Immigration and made a general enquiry. She said to me at the Department of Immigration had told her that my Ministerial appeal as rejected and I would have to return overseas.
64.While I was shocked about the rejection by the Minister of Immigration it did not bother me that much because I had found the person that I wanted to spend the rest of my life with. I was content with my life with Rita.
65.Rita and I then decided to get engaged. I formally asked my father's first cousins to speak to Rita's parents to ask their consent for our engagement and marriage. Rita's parents were happy for us and consented.
66.We were engaged on 10 April 1999. Both Rita and I knew that we wanted to marry before the letter from the Minister arrived. It was a feeling that we both had because we were in love with each other.
67.Rita made a second enquiry with the Immigration Department as to what would happen to my migration situation once we were married. Rita said to me:
"The Immigration Department told me that you can't stay here. You have to lodge all your immigration papers overseas. We could do the health check in Australia but the papers had to be lodged overseas."
68.We planned our wedding. It took us about 6 months to prepare for our wedding as there was so much to do.
69.We went to visit the priest to Sign forms for our marriage certificate. We asked him to help us. He said he would try to help us. Our priest later told us that he had asked the Immigration department but that he had been told we had to lodge our spouse application overseas. About three weeks before our wedding we bought our airline tickets to go to Syria to lodge my migration application overseas after our wedding.
70.Prior to our marriage, I spoke with Rita's parents that would need to return overseas as I had to lodge my migration application overseas. They advised me to make a honeymoon of our travel overseas and that it would be a good opportunity for Rita to meet my familiar in Syria.
71.We were married on 17 October 1999. It was a very happy wedding for both of us. We went back to Syria together on 19 October 1999 so that Rita could meet my family.
Migration lodged at the Australian Embassy Beirut
72.Rita and I lodged the spouse application in Lebanon on about 2 November 1999.
73.I was interviewed at the Meridian Hotel in Damascus, Syria as there was no Australian Embassy in Syria. There was a female interpreter. The interview was for 10 minutes. The interviewer kept asking me why I was leaving Australia. I said that because we could not do a spouse application in Australia and I had wanted Rita to meet my family.
74.I was worried about the interview about what I had written before in the refugee application. I did not think I would be asked questions on what I had done before. I thought the interview was going to be about what my spouse application was, what I knew about my wife.
75.I decided to say the same information as before because I was scared that I might get into trouble if I said Something different to what was written.
76.I realized that this was wrong I have decided to tell the truth about my situation in this Statutory Declaration.
77.I received the letter of rejection from the Australian Embassy in Beirut by hand. I had telephoned the Australian Embassy to enquire about my case. That afternoon I was told that my case had been rejected and that I could come to the Australian Embassy to pick up the decision.
78.I went to the Australian Embassy the next day with my cousin who can read English. We collected the decision record and my cousin told me what was written in the decision record. I knew that I had been refused because I had lodged a refugee application and I' had provided information that was not true in the refugee application.
79.My initial reaction when I heard that my case had been rejected was to think of my wife Rita. I felt crazy with despair because I love Rita and she was not with me and I could not stand being apart from her.
80.I telephoned Rita and told her that my case had been rejected. I told Rita that I would fax her the details. I sent Rita the letter of rejection by fax. After that I telephoned Rita and told her I was sorry that I had been refused and that it was my fault. We were both very upset.
Life in Syria
81.I have been unable to find full time work since my return to Syria. There is little work here at this time. My wife Rita sends some money to support me. I also help my mother in her small convenience store.
82.I would have difficulty supporting Rita in Syria as I have not been able to find work here.
My Commitment to my Marriage with Rita is as a Genuine and on-Going Marriage
83.I love Rita sincerely and wish very much to be able to support her and to care for her for the rest of my life. I have therefore been very frustrated that I have not been able to find work in Syria and have had to rely on Rita to send money to Syria for my support.
84.I am a skilled person and would be able to find work in Australia. I would be able to support Rita and our future children in Australia.
85.I sincerely regret all my past actions in respect of my protection visa application.
86.I take responsibility for my past incorrect information in my protection visa application.
87.Both Rita and I have suffered from the rejection of my spouse visa application and being apart for such a long line. I miss my wife a great deal. I love my wife.
88.Rita has suffered being on her own as she has had to take much of the responsibility of seeking legal advice on my case and worrying if I would ever be allowed to come to Australia to be with her.
89.We have talked often on the phone and I reassure her that I love her a great deal. I am sorry and have deep regret for all the problems that I have caused her. I did not know that I would not be able to be with Rita, to care for her and have a settled family life in Australia.
90.I promise to be of good character, and to follow the laws of Australia.
(iv)      Exhibit A11, which is the Applicant's statement, reads as follows:
Personal Details
1.I was born on 8 February 1975 in Beirut, Lebanon.
2.I do not remember anything of Lebanon from the time that I was born to the time I came to Australia in July 1977 with my parents. I was then 2 ½ years of age. At that time I had two younger sisters, Rolla and Rose, who also migrated to Australia with my parents.
3.Rolla was born in Lebanon. Rose was born in Cyprus where we had to go to get out migration visas processed. We then returned to Lebanon for Rose to be baptized before we came to Australia.
Life in Australia
4.I have two brothers, Tony and Peter, and one sister, Joanne, born in Australia.
5.Rolla works in the Accounts Section in a legal firm. Rose is a secretary/receptionist in an IT company. Tony works as a cabinet maker. Peter is working in a factory making bar-b-ques and gas heaters. He was previously a plumber. Joanne is in Year 11 at school.
6.All my brothers and sisters live with my parents and me at the family home at the above address.
7.I went to the St John's Primary School at Auburn for my primary education. I went to St John's High School from Year 7 to Year 10. Then I went to Benedict Senior College at Auburn from Year 11 and 12. These three schools were Catholic schools.
8.My favorite subject was Modern History at school. We used to have school retreats and it was good to get to know other students well. I still have friends from school that I keep in touch with.
9.When I left school at Year 12, I wanted to become a social worker. I was concerned about homeless persons, drug addicts and poor people. I joined the St Vincent de Paul Society and I did voluntary work with the Society handing out food, visiting women refuges.
10.I decided to study computer courses at TAFE in about middle 1993. The first computer course was for a year. I then went looking for a job. I could not find work and so I went back to TAFE to study another computer course. This was for another year.
11.About 2 to 3 months after my second course, I found work as a receptionist in a business that sold computers and typewriters. I was there for about 6 months. I knew someone from the National Australia Bank and I went in to do my aptitude test. I passed the test and then joined the Bank in February 1995.
12.I have continued to work at the Bank. I have worked as an accounts officer, and I now work as a Securities Officer. I process loan documentation, and discharge mortgages. I work as a team leader and when she is away, I would take her position's responsibility as well.
13.I am happy at work. I would like to become a Business Banking Officer and go back to study Banking and Finance. I hope to become a Bank Manager in the future.
Religion
14.I was raised as a Roman Catholic.
15.I go to Church regularly. I try to go to church every Sunday. I also attend the festivities at the Church eg. the celebrations at the end of the month celebrating Mary and the end of fasting.
16.I go to St John's Church in auburn. Father Jeffrey is my parish priest.
17.As not all my family go to church regularly, I would go to church on my own. Sometimes my mum comes to church with me and we would go to the St Elias Catholic Church at Guilford here the mass is held in Arabic.
18.I was married in the St Nicholas Orthodox Church at Punchbowl as my husband is an Orthodox Christian. The chaplain was Father Elias.
19.My religion is important to me I would like to raise our children familiar with both our Catholic and Orthodox religions.
Relationships prior to marriage
20.Prior to meeting Touni, various people had asked my parents for permission to court me. But I did not accept because I did not know these people personally.
21.My husband, Touni, was my first boyfriend. My first love.
22.Touni and I met at my friend's home in December 1998. My parents and I were visiting family friends, Jackk and Jamile Bedros and Touni came to visit at the same time. He was with his Dad's cousins. It was by chance that we met.
23.About two days later, Touni came to visit me at my home. He asked my parents' consent to court me. We talked with each other. He then would visit me almost every night and he courted me. We would talk together. My parents were a bit strict and Touni's visits were supervised - everyone in the family knew he was courting me. It didn't bother me because I felt really comfortable with him. Touni was also comfortable with my family. He just fitted in with my family and my parents, brothers and sisters all liked him.
24.Touni would bring over flowers for me. He often brought roses for me. He stopped bringing the roses after we got engaged.
25.I recall that when Touni first came to my home, he told my parents and me of his migration problems. I recall he said that his visa had expired and he had applied for refugee status to stay in country. He said he had a solicitor helping him.
26.I recall he showed us his Passport and a letter. I recall that his passport had a bridging visa. To the best only recollection the letter was from his solicitor and addressed to the Minister for Immigration. I have been shown a copy of the letter at pages 135 to 137 of the "T" documents. While I am not 100% sure, I believe he showed us that letter. I did not ask him any of the details concerning his refugee application. I did not know that he had made untrue statements in support of his application for refugee status. I did not become aware of that until his application for a spouse visa was refused.
27.My parents talked to me about that. They said that perhaps my husband was interested in me because he wanted a visa to come to Australia.
28.I said that I didn't think it was in him to show an interest in me just because of his migration problems - he could have done this before but does not seem to have wanted to chose just anyone.
29.I felt that Touni was sincere in his interest in me. Touni is a kind person. I do not think he would want to harm anyone. He is a helpful person and helps others out. He has a good personality. He is kind hearted. He also makes me happy and makes me laugh. We can talk for hours on end about anything and nothing and laugh together.
Engagement
29.I recall sometime in March 1999 Touni showed me a letter from the Minister's office. I believe a copy of this letter is at page 140 of the "T" documents. He told me he would have to leave the country.
30.In about March 1999, Touni proposed to me. As he was leaving, we were talking in the driveway and he asked me to marry him. I accepted because I loved him then as I love him now. I can talk about anything to him. I am comfortable with him.
31.Touni then came formally with his relatives, his cousins, to ask for my hand in marriage. They came to talk to my parents. Touni's cousins and my parents met to talk about our future while Touni and I waited in the TV /rumpus room.
32.After the discussion we started to prepare for our engagement.
33.After Touni proposed I telephoned the Department of Immigration and asked them if a person who had a bridging visa could apply for permanent residency in Australia if they were marrying an Australian citizen. I was told they would have to go overseas to apply.
34.We had our engagement party on 14 April 1999. We invited close family and friends. We had about 50 guests. The Orthodox priest Father Elias also came to our engagement.
35.Father Elias held a religious ceremony at our engagement. He blessed our rings on top of our heads three times when we exchanged rings. He read religious blessings. These were special moments in our lives.
Wedding
36.It took about 6 months to plan for our wedding because there were so many things to do - the bridesmaid dresses, the flowers, the photographs, video, groomsmen, the church, the reception, my dress, hairdressers, beauticians.
37.We were married on 17 October 1999. It was a beautiful day. It started with a few sprinkles and by the time I came back from the hairdresser there were no clouds in the sky.
38.We were married at the St Elias Church. The church was packed with friends and relatives from both sides. We had a full religious ceremony lasting for about 40 minutes. Our marriage was blessed. When we walked out of the Church we released two white doves -we held them in our hands and then released them into the air.
39.I was so happy and excited. I was so happy because I was with Touni who was the person I wanted to spend the rest of my life with. Touni also seemed as happy as me. He cried a little because he saw my mum crying and he missed his mother attending our wedding too. It was a sentimental and happy wedding.
40.On my side, my brothers were groomsmen and my sisters were bridesmaids. My husband had two cousins as groomsmen. I also had one of my best friends as my bridesmaid. We also had a pageboy, my cousin's son and flower girl, my best friend's daughter.
41.We had a reception in Fairfield at the El Roche Lebanese Wedding Reception Lounge. We had about 250 guests. The reception lasted for about 4 ½ hours. We had a wedding cake cut. We had the wedding waltz. I threw my bouquet at a group of girls and Touni threw my garter at a group of boys. It was fun.
42.It was a happy reception. The music was good. The atmosphere was excellent and Touni and I were happy. Our families and friends were also happy for us.
43.After the reception we took photographs of us in the City at the Rocks. We then went to stay at the Swiss Grande at Bondi. We stayed there for two nights.
44.We then returned to my parents' home, picked up our belongings and then flew to our honeymoon in Syria.
Travel to Syria
45.We decided to have our honeymoon in Syria so that I could meet my husband's family. I had only spoken to them over the phone. We also wanted to lodge at the Australian Embassy in Lebanon, my sponsorship of my husband to migrate to Australia as my spouse.
46.I was overseas for about 2 months. In that time, we went sightseeing, visiting Touni's relatives and friends. We stayed at Touni's home at Damascus. The home used to be in Touni's father's name. After he passed away, Touni's brother decided some years later to live elsewhere and Touni paid him his half share of the home. Touni and his mother live in the home.
47.Touni and I went to Lebanon to lodge my sponsorship application for him. I recall that this was early November 1999. We had to go through checkpoints on the border. Because I was Australian I was checked for a long time.
48.When we went to the Australian Embassy there were no difficulties in lodging the form, just the long line up.
49.We stayed in Lebanon for 2-3 days and stayed with Touni's aunt and grandmother in Beirut. We then went back to Syria.
50.Leaving my husband to return to Australia was tragic. I was so depressed. I could not bear the thought of leaving him. I cried.
51.It was hard to come back to Australia on my own. I missed my husband. I cried every night. I still cry at night as I miss Touni dearly.
52.I miss everything about him. I miss having him around me. I feel different now that I am married. I feel a sense of loss without my husband - I need him with me. I have difficulty concentrating at work as I am worrying about my husband.
53.I have developed growths on different parts of my head which has been caused by stress from missing my husband and his migration problems.
Rejection of sponsorship qualification for Touni
54.I have been shown a copy of the letter dated 13 July 2000 which is at page 208 of the "T" documents. I recall that Touni faxed me that letter in July 2000. When I read that letter I knew his visa had been refused but I did not know why. I recall that I spoke to Touni about it. He told me that his solicitor had told him that he needed to say something dramatic to stay in Australia to be a refugee and that he (Touni) agreed to go along with that. He was upset when he told me this. I realised that he had told lies in his refugee application. Up until that time I did not know that. I did not think there would be any problem with our application.
55.The rejection of my husband's migration application hurt me a great deal. I have become very depressed. I cry easily.
56.I am frightened that my husband will never be allowed to come to Australia.
57.I never thought that my husband would not be allowed to come to Australia. He is a very good person. A compassionate man. Our marriage is most definitely true.
58.When my husband told me about his migration problems with his refugee visa applications, I realized that what he had done was wrong because much of the information provided by him was wrong. But I never knew that this would stop him from coming to Australia as my husband.
Hardship to me if my husband cannot come to Australia
59.I do not feel that I could live in Syria. I would miss my family in Australia.
60.I do not think that I could adapt to the lifestyle in Syria. It is a more restrictive society. It is a predominantly Muslim society and not as open as it is in Australia.
61.I'd lose my job and a career that I have been working many years to achieve.
62.I see myself as an Australian and Australia as my home.
63.In April 2000, I obtained a loan from the National Australia Bank for $185,000.00 to purchase a home at 111 Explorer's Way, St Clair. The home was for $195,000.00. Some of the deposit came from money gifts at our wedding and money that I had saved up. I have fully furnished the home. It is remains empty waiting for my husband and me to move in. The home is for our married life. I do not wish to live in it on my own. I go there on the weekends to keep an eye on the home, mow the lawns and clean up. I feel sad when I go to our home because I miss my husband. The home is for us but he is not here.
64.The home is in the name of my sister Rolla and I. The loan is also in both our names but I am the only person paying it off. I have to pay $1,285.00 per month for the home. My salary is $1,185.00 per fortnight. I live my parents and they help me out.
65.Touni is a cabinet maker as his trade. He is good in his profession. He is a hardworking man and would have no difficulty finding work in Australia. I am waiting for him to come back to put in a new kitchen into our home in St Clair.
66.I see my future as having my husband back with me in Australia. If he could not come, my life would be devastated. I think I would go crazy.
67.Touni and I have talked about tile rejection of his application. He has said that he is really sorry about what is happening to me. He didn't think it would happen like this. We both thought that we would be together soon. We had thought that he would be back within 6 months after we applied.
68.Every time I speak to him I tell him that I love him and that I will never stop loving him. He says the same to me. I feel so sad about what has happened to us.

(b) My inclusion of the documents referred to in subparagraph 2(a) should not be construed so as to mean that I agree with all of their content.

In respect of Mr Kahila's evidence, which is considered in conjunction with his statement (Exhibit A10):
(a) Mr Kahila came to Australia on a visitor's visa on 25 April 1996.
(b) On 24 February 1997 Mr Kahila applied for a protection visa; the grounds specified in his application (T7) were as follows:
1. I make this statement with reference to my application for a Protection Visa and with reference to the United Nations Convention and Protocol, relating to the status of Refugees.
2. I am claiming Persecution on the Convention Related Grounds of Religion.
3. I was born on the 20 January 1971, in Damascus Syria.
4. I am a Syrian National and have no other Nationality.
5. I am single and never have been married.
6. I am a former member of the Eastern Orthodox Church. But now I am a Born Again Christian.
7. My primary occupation has been that of an Aluminium worker.
8. I had completed conscription in 1991.
9. My family and I have since 1986, been living in Asah, Batoun Syria.
10. Members of my family have always been strictly devoted to the orthodox Church, culminating in my brother joining the Priest-hood in 1992.
11. My brother and I had a deep commitment towards our Christian faith, but over the years our views and interpretation of the Bible began to differ in some areas.
12. During my conscription period, between 1989 and 1991, I had participated in preaching to non Christian soldiers. This practice had put me at odds with other Muslim soldiers and commanding officers. I was ridiculed and on many occasions set upon and beaten by my enemies.
13 On atleast five occasions. I was placed in detention, where I would spend weeks in total isolation and face ill treatment, in an effort to discourage these activities.
14. I had found the Army extremely difficult to cope with. My Bible and virtually every Religious book that I had was confiscated from me.
15. Following the period of conscription I resumed working as an aluminium worker in Damascus. But I found time to travel to Beirute, Lebanon on a regular basis to meet up with other Christians Groups.
16. I had been introduced to the Born Again Christian Movement in Beirute in May 1991. I became a member of the Beirute Apostolic Movement and became further entrenched in my love for my faith.
17. I had a bitter conflict with my family as I announced that I would be leaving my former Church. This news had been very devastating for my parents.
18. During my period in Syria I tried to link up with other people who shared my views. Unfortunately such believers are rare in Syria, as the Born Again Christian movement is still in its infancy stages.
19. However I did manage to link up with ten other young Christians who had also lived in Damascus.
20. I continued to. return to Lebanon, every so often and meet with the Church in Beirute.
21. In 1993 I travelled to Kuwait for work purposes. I had been invited by a large Aluminum Plant in Kuwait to work for them. I had been awarded extremely good working conditions.
22. However Kuwait is a very strict Islamic country which does not tolorate open preaching. After only 5 months I was dismissed from the company and deported out of Kuwait as punishment for my Religious Activities. I had been detained by Kuwaiti police for hours and placed in custody for 4 days until my eventual deportation out of Kuwait. My visa had been canceled by the Kuwaiti lmmigration.
23. When I returned to Syrian I was still determined more than even to continue preaching. I resumed meeting with my group but soon after I returned our preacher, Jon Boutros was detained, after having previously been detained and warned against preaching to non Christian on at least 3 occasions during my absence in Kuwaite. His whereabouts is still unknown until this very day, but it is presumed that he is being held in Mazzi prison.
24. Following this episode, I along with the rest of the group were initially fearful from suffering a similar fate. But within one week after his detention, we set upon a campaign of vigil prayers outside the Islamic Mosque.
25. I had a Moslem girlfriend whom I had tried to convert to Christianity. She responded and was attending our group meetings. However when her parents had found out, they became very angry with her. Her father who is also a member of the IsIamic Brotherhood became very aggressive towards her. She had disappeared and I had not seen her since.
26. Her family followed me constantly as they sought revenge. Her father is a' powerful and influential member of the IsIamic Brotherhood. Members of the Brotherhood came to my house threatening me with violence.
27. Our properties were targeted and we found it extremely unsafe to appear in public. My work establishment had also been attacked in June 1994, with windows broken and doors smashed.
28. Our complaints to the authorities were ignored. Our safety in Syrian could not be guaranteed by the authorities who had also participated in a campaign of selective harassment and abuse against us.
29. In August 1994, We applied to the local Government to obtain a license to build a Church. However our application was dismissed, as the Government claimed that it had not been our intention to build a place of worship, but to house anti Government Political Activities. This decision had stunned us as we had realized that the Syrian Intelligence had now became deeply involve in implicating us with political activities.
30. In October 1995, my car was set ablaze whilst being parked outside my home. I had later received telephone calls from the Islamic Brotherhood. I had long suspected that these attacks on my property were the work of the Islamic Brotherhood, and under the direction and with the protection of the Intelligence.
31. It is a well known fact that the Islamic Brotherhood secretly cooperate with the sections of the Intelligence, as many members of the Intelligence sympathize with the Islamic Brotherhood, or are members themselves. The wave of Islamic extremists in Syria, like the rest of the Middle East, is gaining excessive power.
32. Again in February 1996, my business premises had been attacked by the Islamic Brotherhood. They had broken into the premises and inflicted thousands of dollars of damage to machinery and equipment, then managing to set a whole room on fire. My immediate reporting to the authorities became counter productive, as the officers warned me that any such complaints would further put me at odds with the authorities.
33. I decided to apply for a visa enabling the to travel to Australia in an effort to preserve my life. I arrived in Australia in April 1996.
34. After my arrival in Australia, I had initially managed to keep in contact with my Church in Syria. I have now become aware that in May 1995, a former Muslim and member of my Church had been killed during an attacks on his home. I have also learnt that five other members have been detained since August 1996, and have still not been released by the authorities. They have been accused of anti Government activities.
35. I cannot return to Syria, as my return will undoubtedly place my life in extreme danger. My subjective fears stem not only from the ruthless campaign of abuse, which had been instigated against me by both the Intelligence and the Islamic Brotherhood, but also due to the murder, and continuos arrest of members of my Church.

(c) The application referred to in subparagraph 3(b) having been refused, Mr Kahila appealed to the Refugee Review Tribunal ("RRT"). Mr Kahila gave evidence at the hearing before the RRT, repeating the grounds specified in his original protection visa application; that application also failed. The RRT issued its decision on 2 June 1998 (T12); the RRT's "Findings and Reasons" read as follows:

The Tribunal had some difficulty with the applicant's credibility. For example, no mention was made in the applicant's statement accompanying his Protection Visa application of arrests and interrogations of the applicant's religious group by Military Intelligence. The applicant in his Protection Visa statement specifically mentions arrests of the preacher of the applicant's religious group and his subsequent disappearance, but he states that "following this episode (ie the arrest of the group's preacher) I along with the rest of the group were initially fearful from suffering a similar fate. " He goes on to state that the group staged a prayer vigil outside the mosque, but does not say that anything happened to the group as a result of this. At the Tribunal hearing, on the other hand, the applicant talked of arrests and detentions of his religious group on at least 5 occasions, starting at a date prior to 1993. The applicant was also extremely vague about the treatment he received both while doing his compulsory military service and on later occasions when he claims to have been arrested and to have been held for periods of at least 2 days by Military Intelligence in Syria.
The Tribunal is mindful of the fact that
. . . care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. (Guo v MlEA &Anor (1996) 64 FCR 151)

However, the Tribunal is not required to accept uncritically any and all claims made by applicants: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs, (1994) 52 FCR 437; and it
does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
(Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347 at 348).

The Tribunal has not found all claims made by the applicant to be strictly truthful. In particular, the Tribunal finds that some aspects of the applicant's claims are either fabricated or exaggerated.
The Tribunal accepts that the applicant became a born again Christian at some time before he commenced military service in 1989. The Tribunal accepts that he was verbally abused by his fellow soldiers because of his religious beliefs, and that he was on occasion beaten by them. The Tribunal accepts that the applicant was questioned by his superior officers for speaking about religion, and that he was detained for short periods to prevent him from involving himself in religious discussion and attempts to convert his fellow soldiers. The Tribunal does not accept that the applicant, aside from being confined to a cell for comparatively short periods, was physically harmed by his superior officers. The applicant was unable to provide any detail at all about any physical mistreatment he suffered in military prison other than to repeat that he was "beaten" .The Tribunal considers it highly unlikely that the action of the applicant's superior officers was for reason of his religious beliefs. From the applicant's account, it would appear much more likely that his superior officers were attempting to ensure that he would not cause disturbances and fights among his fellow soldiers by speaking against Islam. His superiors would repeatedly warn him not to proselytise, and the applicant would repeatedly do so. The attitude of his superiors is consistent with government policy about proselytising, as reported by independent authorities (see p 10).
The Tribunal accepts that the applicant worked for a short period in Kuwait and was asked to leave that country because of his religious evangelism. Independent evidence suggests that attempts to convert Muslims to Christianity are unlikely to have been well received in Kuwait and indeed that such proselytising is against the law in Kuwait. The applicant therefore was arrested and deported from Kuwait because he broke the law in that country.
While the Tribunal accepts that the applicant had some kind of relationship with a Muslim girl, and that he attempted to convert her, the Tribunal does not consider this relationship or its termination relevant to the applicant's claims for refugee status. The applicant himself did not seem to consider it relevant at the Tribunal hearing, and indeed was vague about whether the girl's father's alleged membership of the Muslim Brotherhood had any effect on the applicant. He explicitly stated that he did not think the attack on his workshop was a result of his relationship with the Muslim girl, and that the attack was carried out by another group of Muslim fundamentalists.
The Tribunal accepts that the applicant was the victim of a series of attacks on himself and his property by a group of people who made threats to the applicant and demanded that he convert to Islam. The applicant claimed at the Tribunal hearing to have reported the attacks on his property to the police on at least two occasions, the most recent being in October 1995 when his car was set on fire. The police, according to the applicant, did nothing about these attacks, but there is no evidence to that effect. The police did not, for example, tell the applicant they would not investigate the attacks. In the applicant's Protection Visa statement, he also claims to have reported the attack on his shop in February 1996 and to have been told by the police that "such complaints would further put me at odds with the authorities ". This latter encounter with the police was not mentioned at the Tribunal hearing. The fact that the applicant claims to have reported each of the attacks on his property suggests that he was not afraid of the police, and indeed that he was reasonably confident that they would do something about his problems.
In relation to the alleged beatings by the Islamic group,' the applicant was asked at the Tribunal hearing whether he had reported these to the police. He said that he had not. The reason the applicant gave for not reporting them was that he did not know who his attackers were and for this reason any complaint was unlikely to be successful. This seems to the Tribunal a plausible explanation when the attacks took place in a large city like Damascus.
The Tribunal is not satisfied that the authorities' failure to protect the applicant against attacks on his person and his property from an apparently fundamentalist Muslim group is evidence of their unwillingness to assist the applicant for religious reasons. The more persuasive explanation is that since the applicant could give no indication of who the perpetrators of the attacks on his property were, it was difficult if not impossible for the police to effect an arrest. The applicant did not complain of the physical attacks which I were made on him, and therefore the police could not have been expected to pursue the attackers.
The Tribunal does not accept that the applicant was ever arrested by the authorities because of his involvement in a born again Christian group in Syria. No mention was made in the applicant's Protection Visa statement of arrests of the applicant as part of his religious group. The applicant's account of these arrests at the Tribunal hearing was vague and confused. He was initially not sure when the arrests began, saying that it was in. 1994 and later correcting this to three arrests before he went to Kuwait (in 1993) and two after. These claims contradict the applicant's Protection Visa statement where it is implied that after the preacher's arrest, the group was afraid of what might happen to them, but that in fact nothing did: "...within one week after his detention, we set upon a campaign of vigil prayers outside the Islamic Mosque."
The Tribunal accepts that the applicant's religious group was refused a licence or a building application to erect a church. Independent evidence suggests that the Syrian government has at least in the past been wary of Christian fundamentalist sects to the point of making them illegal, and continues to be suspicious of people seeking to convert others. It may have been the case that the authorities in refusing a building application said that it was because they believed the group were engaged in political activities against the regime. Whatever the authorities' actual reason for refusing the group's application, the action itself, while it may have disappointed the applicant, did not harm him. The applicant made no mention of this incident at the Tribunal hearing, although his adviser did.
The Tribunal accepts that the applicant has been harmed in the past for his religious beliefs. He was harmed by his fellow soldiers while he was in the army, and he was harmed by a group whom the applicant believed to be members of the Muslim Brotherhood. In neither case was the harm inflicted on the applicant sufficiently serious as to amount to persecution in a Convention sense. It consisted of verbal abuse and threats, damage to property , and beating. For such harm to amount to persecution in a Convention sense, it also needs to be official, or officially tolerated or uncontrollable by the authorities. There is no evidence that the harm suffered by the applicant was in any sense official or officially tolerated.
The Tribunal does not accept that the applicant was ever harmed by the Syrian authorities for his religious beliefs. His superior officers in the army, who may be described as "authorities", took action against the applicant for disobeying directions, possibly for contravening government policy forbidding proselytising, and, in the Tribunal's view, for causing disturbance in the applicant's army unit. It may have been unfair or unreasonable for the applicant's superiors to blame the applicant rather than his fellow soldiers for the disturbance caused by religious debate, but there is no indication that the applicant was punished for his religious beliefs. There is no evidence that the Syrian police, to whom the applicant complained about attacks on property, refused to protect him because of his religious beliefs. The refusal of a licence for a church for the applicant's religious group does not, in the Tribunal's view, constitute harm to the applicant amounting to persecution, although it may have been frustrating and disappointing.
The Tribunal accepts that the applicant does not wish to return to Syria because he fears his life will be in "extreme danger" from both the Syrian Military Intelligence and the Muslim Brotherhood. The applicant claims that not only did the preacher of his religious group disappear, presumably into prison, in 1994, but also that members of his religious group have been detained since August 1996.
While the Tribunal accepts, taking account of the independent evidence, that Syrian society and Syrian authorities are likely to be unsympathetic to Christians, and especially born again Christians, there is no evidence beyond the applicant's assertion, that people are arrested and detained because of their religious beliefs. There is no mention in authoritative information sources, such as the US State Department, Human Rights Watch or Amnesty International, of arrests and detention of Syrians because of their religious beliefs. The applicant did not claim, nor does the evidence suggest, that his religious views encompassed any political opinions, much less political activities which might have attracted adverse attention from the authorities, who are notorious for pursuing political opposition. The Tribunal therefore does not accept that the applicant's religious colleagues have been arrested and detained by the Syrian authorities.
The Tribunal has considered whether there is a real chance that the applicant will face persecution for a Convention reason if he returns to Syria. The Tribunal finds that there is not a real chance that the alleged Muslim Brotherhood group would continue to pursue the applicant when he has been absent from Syria for over two years. While these people inflicted damage on the applicant's property in the past and physically assaulted him, there is no evidence that the authorities refused to protect the applicant against them, or in any sense condoned their actions. Even if there were a chance that the Muslim group renewed their activities against the applicant, the Tribunal believes that protection would be available to him from the Syrian authorities.

The Tribunal does not accept that Syrian authorities inflicted harm on the applicant in the past for religious reasons or for any other Convention reason. The Tribunal believes that there has been no change in circumstances such that the authorities would be likely to pursue the applicant if he returned to Syria. There is not therefore a real chance of the applicant's being persecuted for a Convention reason on return to Syria.
The Tribunal is therefore satisfied that the applicant does not have a well-founded fear of persecution.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
DECISION
The Tribunal affirms the decision not to grant a protection visa.

(d) Mr Kahila then applied to the Respondent under section 417 of the Migration Act 1958 ("the Act"). That application was set out in a letter by Harrisons Solicitors, dated 8 July 1998 (T14), reading as follows:

That we humbly request the Minister for Immigration and Multicultural Affairs to exercise his discretion under section 417 of the Migration Reform Act 1992, and substitute a more favourable decision to that of the decision of the Refugee Review Tribunal, where the Member Patricia Leehy affirmed the Delegates earlier decision that the Applicant is not entitled to a Protection Visa.
That section 417 states:

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 417 another decision, being a decision that is more favourable to the Applicant, whether or not the Tribunal had the power to make that other decision.

(ii) In exercising the power under subsection (1), the Minister is not bound by subdivision AA or AC of division 2 or part 2 by the regulation, but is bound by all other provisions of this Act.

(iii) The power under subsection (1) may only be exercised by the Minister personally.

That it is submitted that the following factors are relevant to the determination of the public interest aspect of a case.
That our Client's case presents strong circumstances of such an order that failure to recognise them would result in irreparable harm and continuing hardship to an Australian Citizen or lawful Permanent Resident aggrieved by the decision.
That our client's case although not strictly satisfying the Refugee Criteria as set out in the United. Nations Convention definition relating to the status of Refugees, he still faces significant threats to his life and safety if he were to return to Syria.
Our client who is a citizen of Syria arrived in Australia on 25 April 1996. He applied for a Protection Visa on 24 February 1997. The Delegate of the Minister made a decision to refuse the application on 18 June 1997. The Refugee Review Tribunal affirmed this decision on 2 June 1998.
Our client fears returning to Syria where he will be persecuted by members of the Syrian Intelligence and the radical Islamic Brotherhood on the basis of having an active involvement with the Born Again Christian Church.
Our client was formally a member of the Orthodox Christian Church however in about May 1991 he was introduced to members of the Born Again church and was to become a member of the "Beirut Apostolic Movement".
In 1993 he travelled to Kuwait on a work visa but was dismissed from his employment and deported on a charge of preaching to Muslim coworkers.

10. After his return to Syria he continued to remain an active member of his church. The group members including the preacher continued to suffer arbitrary detention on the basis of participating in what the authorities viewed as a non religious activity.

11. He also became a target of the Islamic Brotherhood after he had entered into a relationship with a Muslim girl. The girls parents had discovered that she was participating in the groups prayer meetings. She had soon disappeared however the authorities did not investigate her disappearance.

12. His home continued to be targeted and found that his work establishment was also attacked in June 1994. Again the authorities did not investigate these attacks.

13. The group was denied the building of a formal place of worship after they had submitted a building application. No reasons were provided for the refusal.

14. Our clients car was set on fire in October 1995 and once again in February 1996 his business premises was attacked by the Brotherhood. These attacks not only placed his live under extreme danger but also prevented him from the opportunity to earn a living.

15. The church members are accused of having Zionist connections.

16. After his arrival in Australia he became aware that group members continued to be detained by the authorities. He fears that if he were to return to Syria he will be detained by the authorities and accused of participating in political activities or killed by the Brotherhood.

And in light of the above claims we humbly request that you allow our client to stay permanently in Australia.
Yours faithfully
Sam Issa
Solicitor

(e)      The Applicant and Mr Kahila met in December 1998; they were married in October 1999 and departed together to Syria on an extended honeymoon of 2 months in order to visit Mr Kahila's family.
(f)       An application for a spouse visa was filed on 2 November 1999. Mr Kahila was interviewed in connection with that application by the Australian Embassy in Damascus on 10 April 2000; at that interview (T22) Mr Kahila adhered to his grounds as contained in his protection visa application, and repeated in his evidence before the RRT.
(g)      In fact Mr Kahila was not, and never had been a refugee. He had never been prosecuted because he is a Christian; this was so also in respect of his army service in Syria. In so far as his various applications contained allegations that he has been persecuted, those allegations were false.
(h)      Mr Kahila thus admitted that he had made false statements as to his claims that he was a refugee to the authorities in respect of his protection visa application, in his evidence before the RRT, and in his interview in Damascus.

Some considerable time in evidence was taken up by a consideration of certain aspects of Mr Kahila's statement (Exhibit A10). In particular Mr Kahila's evidence revealed that the last sentence of clause 24 was untrue. Mr Kahila was not and never has been a born again Christian. I am prepared to accept that the false statement in clause 24 may perhaps have arisen in the context of that statement being prepared between Syria and Australia and in the course of translation. I make this concession despite the fact that the sentence in question appears to be simple enough.
In respect of his protection visa application, his appeal to the RRT and his application to the respondent under section 417 of the Act, Mr Kahila was represented by Mr Issa (a solicitor and migration agent). Mr Issa speaks both Arabic and English. Although Mr Kahila accepted responsibility for the false claims made by him, he said that Mr Issa played a considerable part in their fabrication. Exhibit A10 indicates in clause 42 that Mr Kahila thought that his protection visa application was "exaggerated", but that Mr Issa thought that "it was better to do it and he (Mr Issa) knew his job". Mr Issa was not called to give evidence; in the circumstances it would be unfair without hearing from him to say that he was party to the making of false claims; at the same time I have no reason to disbelieve Mr Kahila's evidence in this regard. It is perhaps relevant to note is that Mr Issa was the immigration agent in Re Abdul-Kader and Minister for Immigration and Multicultural Affairs [2000] AATA 1055.
(j)        Mr Kahila's spouse visa application (T18) did not, in answer to question 32 (T18, page 145), include details of Mr Kahila's employment while he was in Australia. However, I accept that a letter from his employer in Australia, Class Aluminium Sales Pty Limited (T18, page 174), was attached to his application, so that even if the answer to question 32 was not correct, there was a disclosure of the fact that he had worked in Australia.
(k) It seems likely that he worked in Australia while not legally permitted to do so, for a period of three months from approximately July to September 1998. Mr Beech-Jones submitted that I should accept that he did work illegally, but did so without knowledge that he was in fact working illegally. In the light of the fact that Mr Snell indicated his acceptance of that statement I too am willing to accept it; it follows then that I need not express any view as to possible breaches of section 235 of the Act. However it is strongly likely, on the balance of probabilities, that Mr Kahila committed breaches on various occasions of section 234 of the Act, and in respect of which the maximum penalty is 10 years in prison or 1,000 penalty units fine or both (it is noted that, in accordance with section 4AA(1) of the Crimes Act 1914, one penalty unit means $110). Mr Beech-Jones contended that, in respect of the section 417 application, Mr Kahila did not know of its contents; that application was submitted by Mr Issa. It may be that Mr Issa simply formulated the section 417 application utilising for this purpose the claims previously made, and that Mr Kahila did not play an active role in its precise formulation. At the same time he authorised the making of the application, (see T8), and indeed did not in his evidence say that it was made without instructions. He must, therefore, be taken to have concurred in its repetition of the concocted claims utilised in the prior applications.
(l)        Mr Kahila is an aluminium worker who was (in Syria) involved in the construction of kitchens; he also at times helped his mother in her convenience store in Syria. It is as an aluminium worker that he was employed by Class Aluminium Sales Pty Limited in Australia. Mr Kahila said in his evidence that he is not working at the moment. He did not specify how he is then able to live. He spoke also of the depressed state of the Syrian economy. He was asked whether women worked in banks, and answered in the affirmative, although he did say that the pay is low. He emphasised that were the Applicant to join him in Syria, he would not be able to give her a lifestyle and standard of living commensurate with that which she enjoys in Australia.
(m)     It is relevant to note that Mr Kahila apologised on a number of occasions during his evidence for the false claims made by him and referred to previously in these Reasons. Mr Beech-Jones submitted that I should give Mr Kahila credit for the fact that he told the truth in his statement (Exhibit A10). As I understood that submission, the RRT had accepted that at least some of Mr Kahila' claims were true; had Mr Kahila adhered to them, the Respondent would have had difficulty in disproving them. It seems odd to argue that I should give credit to Mr Kahila for telling the truth before the Tribunal; after all the Tribunal expects that evidence before it will be truthful. I do not think that that submission has merit; however, and apart from any other considerations, Mr Kahila's evidence before the Tribunal, had he adhered to the false allegations, would have been open to question, inter alia, having regard to the fact that the Applicant and Mr Kahila went to Syria for two months immediately after their marriage.

I turn next to consider the evidence of the Applicant:
(a)      She is 25 (nearly 26), and as Exhibit A11, demonstrates she has already achieved a good position in a bank after having attended courses and learned some computer skills.
(b)      Although she cannot read Arabic she can speak it, although not fluently.
(c)       She knew that Mr Kahila was in difficulties with the immigration department before she married him; as to whether she knew precisely what lies he had told the authorities is open to some doubt. At the same time it is very likely that she knew more than she is now prepared to admit. She knew that he had made a refugee application. When asked whether she knew what a refugee was, she said that a refugee is a "boat-person" or a person who is in danger in his or her own country. She phoned the Respondent's Department on two occasions in connection with Mr Kahila's affairs. That she accompanied Mr Kahila to Syria immediately after the wedding is indicative of the fact that she could not have seriously believed that he was in danger and thus a refugee from Syria.
(d)      The Applicant is an educated, intelligent and personable woman. She said that she disliked Syria because of its attitude to women and particularly the way in which they are required to dress. She is a member of a large and close-knit family; she was asked to consider the possibility of having to move to Syria and said that that was not something she could contemplate at this stage. She also indicated that to leave her family and career in order to be reunited with her husband in Syria would be unthinkable. She said also that as a Roman Catholic she would never contemplate divorce.
(e)      The Applicant said in evidence that she was physically healthy although depressed about her separation from her husband.
In respect of the statutory declarations and character references contained in Exhibits A1 to A9 inclusive, the Respondent did not require the attendance of the deponents and their evidence was thus accepted, although it cannot be said that these statements advance the Applicant's case in any significant fashion. They can be divided broadly into two classes; Exhibits A1 to A5 are by members of the Applicant's family and a family friend; some of them speak (albeit in the briefest possible terms) of Mr Kahila's dealings with the immigration authorities. The others (Exhibits A6 to A9) are very brief statements by officials and others in Syria, and which simply speak of Mr Kahila as a good man. Although they do not speak of any knowledge of Mr Kahila's protection visa claims, Mr Beech-Jones contended that this was not surprising when one considers that the statements made in his protection visa application are so unfairly critical of Syria. I am inclined to think that Mr Beech-Jones submissions on this point may have some merit.
(a) I turn next to consider Direction 17, which provides guidance to decision makers in relation to "Visa Refusal and Cancellation under Section 501"; Direction 17 is binding on me in accordance with section 499 of the Act.
(b)      In this paragraph 6, where I deal with the character test in part 1 of Direction 17, and in paragraph 7, where I deal with the discretion in part 2 of Direction 17, clause references should be construed as references to numbered clauses in Direction 17.
(c)       The relevant sections of clause 1.9 read as follows:
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:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or involvement in war crimes or crimes against humanity.
(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;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(Emphasis added)

(d) In considering the character test I am required under clause 1.11 to consider recent good conduct. Mr Beech-Jones asked me to treat the character references as evidence of recent good conduct. I do not accept that this is what is encompassed by the concept of recent good conduct. In Re Msumba and Minister for Immigration and Multicultural Affairs [2000] AATA 87, Deputy President McMahon indicated (at paragraph 40) that the concept relates to good conduct in an immigration sense. As I understood Mr Beech-Jones, he also suggested that the fact that Mr Kahila made admissions in his statements before this Tribunal, should also be taken to be evidence of recent good conduct; I do not agree. Bearing in mind that breaches of section 234 of the Act can attract maximum sentences of the nature set out previously (and see paragraph 3(k) of these Reasons), and having regard to clause 2.6(c) of Direction 17, I am obliged to regard such offences as being very serious. With no real evidence of recent good conduct I am constrained to find Mr Kahila fails the character test.

As to the discretion in part 2 of Direction 17:
(a) As regards the primary considerations in clause 2.3 and having regard in this context to clause 2.5:

There is no child whose interest need be considered.

(ii) If given a visa Mr Kahila is not likely to re-offend and the danger of recidivism is remote.

(iii) What then are the expectations of the Australian community? I agree with Deputy President McMahon in Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, who said at paragraph 26:

As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.

(iv) As to deterrence, I also accept that (as stated in many cases involving spouse visa applications) that it is necessary to send a message (and a strong one at that) that serious breaches of the Act will not ordinarily be rewarded by the grant of visas. I am aware of course that the fact that firm evidence as to deterrence is, in all the circumstances not easy to produce. I said in Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023 at paragraph 8(d):

Mr Turner dealt with the question of general deterrence also at some length. He said that although there have been a considerable number of these "similar fact situation" cases, the Respondent has not produced any evidence as to show that refusals of visas have resulted in any diminution in the number of these cases; he contended also that that it is likely that evidence of this nature could be made available. Mr Cureton in turn noted this aspect had not been raised by the Applicant in his Statement of Facts and Contentions.
The Tribunal has, on reflection, grave doubts as to whether there is or could be concrete evidence as to this aspect. This would require evidence as to visa applications which would not or might not have been made if the applicants were aware at the time of the applications that subsequent refugee applications would not succeed, or evidence of applications which were not made because the applicants became aware of the fact that refugee applications are likely to fail. When one considers the matter with these aspects in mind, one can readily see that Mr Turner's argument cannot be tenable. This aspect can perhaps be expressed with more force in the negative. If visa applicants received visas notwithstanding the fact they had repeatedly contravened the Act, other visa applicants would receive entirely the wrong message, and arguably would be likely to and would be encouraged to embark on conduct of a similar nature. These "similar fact situation" cases do result in considerable expense to Australia. It may be that certain Australian embassies could do more to make applicants aware of the fact that false refugee applications are not likely to succeed.

I note also, in this context, that I agree with the remarks of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 in which he said at paragraph 47:

These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.

(b) As to clause 2.6, Mr Beech-Jones contended that Mr Kahila's offences are not very serious, and in all events not as serious as others with which they are grouped in clause 2.6. Mr Beech-Jones may consider that the offences in question are less serious than others referred to in clause 2.6; I am however directed to treat them as very serious and have no option but to do so. It is relevant to note that applications of the kind made by Mr Kahila are costly to Australia.
(c) There is only one countervailing (secondary) consideration and that is hardship to Mr Kahila, the Applicant and the Applicant's family; (clause 2.17). I accept, without reservation, that to separate this couple would indeed cause hardship to all of them. Mr Beech-Jones argued that the Applicant's family migrated to Australia, worked hard, prospered and paid their taxes, and now ask for only one thing, and that is the return of Mr Kahila. I do not consider that the due payment of tax constitutes any special virtue.
The Applicant is reluctant (in the extreme) to leave her career and her close-knit family. She objects to Syria in particular because of what she perceives as its attitude to women. But it must also be remembered that the Applicant can speak Arabic (albeit not fluently) and it is well within the realms of possibility (although this is purely speculative) that there are foreign banks carrying on business in Syria, to whom a competent and computer-skilled employee would be very welcome. The Applicant is quite obviously torn between her devotion to her husband and to her family.

Mr Beech-Jones has referred me to recent decisions given by me in what he referred to as the "Filipino wife cases". In Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956 and Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 I came to the same conclusion in similar fact situations. In fact, it was clear in both of those cases, that it would be difficult for the applicants to join their wives in the Philippines. It seems likely that the Applicant, in contrast, could adapt in order to make a life for herself with her husband in Syria, albeit that she is very reluctant to do so.
Mr Beech-Jones put his case to me on the basis, that to separate this young couple would be devastating to each of them, and to all of the members of the Applicant's family. I am only too well aware of the fact that this decision will come as extremely unpleasant news to them, and it cannot realistically be expected that they will be able to have objective regard to the legal framework involved. But on a close analysis, this matter involves a husband who has, on a balance of probabilities, committed serious breaches of the Act repeatedly, and even after he returned to Syria. There is no evidence of countervailing good conduct. The only countervailing (secondary) factor is that of hardship to the couple and to members of the Applicant's family. The Applicant is, as set out previously in these Reasons, altogether opposed to a move to Syria, and one can understand why this should be so. However, such a move appears, however undesired, to be at least possible.
In all the circumstances the decision under review is affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed:         .....[M Ryan]………………......................................
  Associate
Date of Hearing  25 January 2001
Date of Decision  8 February 2001
Counsel for Applicant               Robert Beech-Jones
Solicitor for the Applicant         Janice Vu & Associates
Solicitor for the Respondent    Michael Snell
of Sparke Helmore