Kirk and Minister for Immigration and Multicultural and Indigenou S Affairs
[2004] AATA 244
•10 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 244
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/292
GENERAL ADMINISTRATIVE DIVISION ) Re
Robyn Mary Kirk
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date10 March 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion in s 501(1) of the Migration Act 1958 to not refuse the grant of a visa should be exercised in favour of Omar Haddid.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 300 prospective spouse visa – refusal on character grounds – past and present general conduct – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – examination of the Visa Applicant’s immigration misconduct – examination of the Visa Applicant’s claims concerning Algerian military recall notices – held the Visa Applicant’s immigration misconduct was serious and that he fails the character test – necessity to balance the expectations and protection of the Australian community against the hardship to the Visa Applicant and Applicant – held decision of the Respondent set aside – discretion not to refuse the grant of a visa should be exercised in favour of the Visa Applicant.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
10 March 2004 Mr RP Handley, Deputy President Summary
1. The Visa Applicant, Mr Omar Haddid, who is currently living in Malaysia, applied for a subclass 300 prospective spouse visa to reside in Australia with his fiance, Robyn Kirk, the Applicant.
2. The Minister for Immigration and Multicultural and Indigenous Affairs, the Respondent, states that Mr Haddid entered Australia on a photo-substituted French passport; that he lodged a protection visa application and was found not to be a refugee; and he escaped from immigration detention and worked illegally while in the community. The Respondent therefore refused Mr Haddid’s subclass 300 prospective spouse visa on the ground that he failed the character test. This is the decision to be reviewed by the Tribunal.
Background
3. Ms Kirk was born in Sydney on 27 July 1961 and is aged 42. She is a business analyst who has worked for a variety of employers on a short-term contract basis.
4. Mr Haddid was born in Ksar Boukhari, Medea, Algeria, on 12 January 1970 and is aged 34. He worked as a fitter and welder and as a swimming instructor in Algeria.
5. Mr Haddid left Algeria on 7 January 2000 and travelled in Turkey, France and the Netherlands before flying to Sydney on 18 September 2000 on a photo-substituted French passport in the name of Boukalfa Brahiti, a French national (T p26). He was stopped at Sydney Airport, questioned and then, on 19 September 2000, detained at the Villawood Immigration Detention Centre (“Villawood”).
6. On 21 September 2000, Mr Haddid lodged an application for a protection visa (T p33) on the basis that he was an Algerian citizen of Berber ethnicity and that he had been persecuted because of his ethnicity and because he refused to join the country’s military service. Moreover, because he ignored military recall notices, he had committed a serious crime and would be treated as a deserter and “arrested and imprisoned and probably executed” if he returned to Algeria (T p65).
7. On 22 March 2001, a delegate of the Respondent refused Mr Haddid’s protection visa application on the basis that independent information about the treatment of Berbers in Algeria did not support his claim of violations of his basic human rights; that independent information advised that all Algerians aged 27 and over on 31 December 1999 are exempt from reservist duty and that he would not be subject to arrest, imprisonment or death on his return to Algeria for not reporting for reservist duty; and that his personal security situation in Algeria would be no different from that of the general population at large (T p97). On 23 March 2001, Mr Haddid lodged an application for a review of this decision by the Refugee Review Tribunal (“RRT”) which on 27 June 2001 affirmed the decision refusing the protection visa application (T p109). On 17 July 2001, Mr Haddid lodged an appeal against the decision of the RRT with the Federal Court.
8. On 19 July 2001, Mr Haddid escaped from Villawood (T p147). On 4 September 2001, the Federal Court dismissed Ms Haddid’s appeal, having been informed before the hearing that he had absconded from Villawood (T p146).
9. On 14 November 2001, Mr Haddid was located and returned to Villawood (T p147). On 23 February 2002, Ms Kirk and Mr Haddid met at Villawood when Ms Kirk was there as a visitor (T p204).
10. On 25 March 2002, Mr Haddid departed Australia under the supervision of officers of the Respondent and flew to Malaysia (T p221). On 2 May 2002, he lodged an application for a subclass 300 fiance visa at the Australian Embassy in Kuala Lumpur (T p194). On 19 November 2002, the Department notified Mr Haddid that it was considering refusing his application on the basis that he did not pass the character test and inviting him to respond (T p308). On 19 December 2002, Mr Haddid made representations to the Department (T p310).
11. On 21 January 2002, a delegate of the Respondent decided to refuse the grant of a visa to Mr Haddid on the grounds that he did not pass the character test because of his past and present general conduct and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T p6). On 21 February 2003, the Applicant lodged an application for a review of this decision with the Tribunal.
12. The hearing of this matter took place in Sydney on 22 and 23 September 2003. At the hearing, the Applicant was self-represented and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the parties at the hearing. Ms Kirk, Jacqueline Everitt and Hammadi Jemari gave evidence in person and Mr Haddid gave evidence by conference telephone from Malaysia.
13. On 23 September 2003, the Tribunal adjourned the hearing to permit the Respondent to obtain a report from a document examiner on the Algerian recall notices provided by Mr Haddid and on the expert report dated 4 July 2003 prepared by a document examiner for the Applicant. Mr Allatt subsequently informed the Tribunal that the Respondent would not be submitting such an expert report because the Department had been unable to obtain an original recall notice for comparison with the recall notices provided by Mr Haddid. However, in an attempt to do so, departmental officers had, on 8 January 2004, interviewed the Algerian Ambassador to Kenya in Nairobi about such matters and a report of this interview was submitted in evidence together with the Respondent’s submissions regarding this. Nairobi is the nearest Australian diplomatic post to Algeria. The Tribunal provided a copy of this report to Ms Kirk on which she made written submissions. The parties declined the Tribunal’s invitation to resume the adjourned hearing, preferring to rely on their written submissions.
Relevant Law and Policy
14. Under s 501(1) of the Migration Act1958 (“the Act”), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(I) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
15. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
16. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when considering, notwithstanding that a person does not pass the character test, whether to exercise the discretion to decide not to refuse the grant of a visa to a person.
17. The issue for the Tribunal to determine in this case is, therefore, whether Mr Haddid is not of good character having regard to his past and present general conduct. If the Tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Mr Haddid.
Evidence
Robyn Kirk (the Applicant)
18. Ms Kirk said she works as a business analyst in information technology on a contract basis for various clients; commonly, she will be employed on each contract for a period of between six and 12 months. She described herself as a peace activist: she is involved in a group called “Manly for Peace”, who pursue local peace issues. She is also a member of the Australian Democrats and a member of the Sydney Peace and Justice Coalition. Through her political activities, she became interested in refugee issues and started to accompany friends visiting Villawood in order to learn more. These friends were already visiting a group of Algerian detainees whom Ms Kirk therefore met on a visit to Villawood on 23 February 2002. Among the group were Mr Haddid and Mr Jemari.
19. Ms Kirk said she only met Mr Haddid at Villawood on two occasions before he left for Malaysia on 25 March 2002. On each occasion, the visit lasted for about two and a half hours during which she was part of a group sitting and speaking with the Algerian detainees. She noted that Mr Haddid was quite sick at this time because he had a cyst on his head, the treatment of which had between ineffective. He was also fearful of being deported. Apart from these two visits, Ms Kirk spoke to Mr Haddid on the phone every few days and more often in the period before he left Australia. These conversations were about everyday things. Mr Haddid decided to leave Australia rather than be deported so that he could determine his own destination. He therefore purchased a ticket to fly to Malaysia and, since arriving there on 25 March 2002, he has been either in Malaysia or Thailand, except for one trip to Hong Kong. Mr Haddid paid for his ticket to Malaysia with money he saved while working after he escaped from Villawood. He was also given money by friends in Australia, including Ms Kirk, which he used to support himself on arrival in Kuala Lumpur.
20. Ms Kirk said about four weeks after Mr Haddid left Australia, after they had talked together on the phone, she flew to Malaysia for a holiday and to be with him. They decided that he should apply for a prospective spouse visa, which he lodged at the Australian Embassy in Kuala Lumpur on 2 May 2002. They did this straight away knowing that it would probably be a long time before the application was approved. Mr Haddid had already run out of money when Ms Kirk arrived in Malaysia and, since then, she has been supporting him financially. They are in daily contact by mobile phone using a telephone card and also using SMS messages and e-mails. She set up a savings account with access by card from an automatic teller machine (ATM) so that Mr Haddid can withdraw from the account using an ATM in Malaysia or Thailand. Generally, he lives on about $500 a month or less, sharing an apartment with others. Ms Kirk said financially it has proved very difficult for her supporting Mr Haddid for what has now been a period of over 18 months. She has little money left and is now living in a room in a friend’s house.
21. Ms Kirk said she went to visit Mr Haddid in Malaysia a second time in March 2003 for approximately 10 days. They had a holiday in Malacca for four days, and also spent three days on Tioman Island off the east coast. While they were in Malacca, they went to a mosque and went through an Islamic wedding ceremony which involved a blessing. They did this in recognition of their commitment to one another. She now considers herself married to Mr Haddid. Ms Kirk said from the time that Mr Haddid made his prospective spouse application, it was always her intention that they should be married. She is not doing this “just to help someone out”, and does not feel she is being used to enable Mr Haddid to obtain entry to Australia. She was asked about the age difference between them. She said this does not worry her. However, she knew she would need to work out whether the relationship was right for her and was aware that she could “pull out” later on.
22. Ms Kirk said they have been through a lot of emotional turmoil. The relationship is “still quite strong” notwithstanding the difficulty of maintaining a relationship when living apart in two different countries. It has been as if their lives have been placed on hold and it has been hard not having enough money to be together more. Ms Kirk said she has also had to deal with Mr Haddid’s “incredible lows” including because of the heat and humidity in Malaysia. One of the difficulties is that he has little to do. Sometimes he goes to the mosque five times a day. He is the eldest child in a family of eight and, therefore, tends to look after others and even shares his money with others. Ms Kirk said she copes by staying busy. If Mr Haddid is granted a visa, they hope to marry in Australia.
Jacqueline Everitt
23. Ms Everitt is a non-practising lawyer who lives at Dover Heights in Sydney. She met Mr Haddid in February 2002 through another detainee, Mr Jemari, when she went to visit a group of Algerian detainees in Stage 1, the high security section of Villawood. In Villawood, visitors sit talking with detainees at a big table in a cafeteria type room. When she went to visit Mr Jemari there, he had a small group of protective Algerians with him including Mr Haddid. Ms Everitt had first met Mr Jemari when he was in prison in New Zealand after escaping from Villawood and travelling to New Zealand where he had sought asylum.
24. Ms Everitt said Mr Haddid was very agitated and worried about what would happen if he was deported to Algeria. He was frightened because of the consequences of his failing to answer a military service recall. Mr Haddid also had a lump on his head and his general health was not good. She noted that he was very caring of other people in worse situations than himself, including Mr Jemari who was still very young at the time.
25. Ms Everitt said she is studying for a Masters Degree in International Law focusing on children in detention. On her way back from Geneva in the first week of October 2002, she stayed in Bangkok for a week where the wife of a friend who worked at the Australian Embassy was very ill. This person was also a friend of Mr Haddid’s and he was in Bangkok at the time doing what he could to assist with her care. Ms Everitt entrusted Mr Haddid with US$3000 to change for her, which he did. She said he is an honest and decent person who is very courtly and solicitous. She talked with him about Algeria. Although he would like to return to Algeria, he is terrified of doing so. It was while she was in Bangkok that Mr Haddid told her of his relationship with Ms Kirk of which Ms Everitt had not been previously been aware. Ms Everitt is not part of the Manly Peace Group and was never at Villawood at the same time that Ms Kirk was visiting.
Omar Haddid (the Visa Applicant)
26. Mr Haddid said he was born in Medea in Algeria. Medea has a high population of Berbers, although there are other ethnic groups living there as well. Mr Haddid said he speaks a little Berber even though in Algeria he had no right to speak the language, discuss issues concerning the Berbers or learn about his culture.
27. Mr Haddid comes from a large family in which he is the eldest child. He has seven siblings: one of his brothers is married and living in France with two children; another brother is in Spain; he has three sisters, one of whom is married and living in Algiers, while the others are still very young and at school. Mr Haddid left school at the age of 15 in order to assist his family financially and left Medea for Algiers to secure work. Initially, he worked as a fitter and welder. Then in 1990, he commenced 21 months national service as a reservist in the Army. Some of this time was spent in the desert about 2000 kilometres from home where it was very hot. While undertaking this service, he witnessed the sons of eminent lieutenants in his unit receive corrupt benefits from the unit without ever themselves having to undertake military service. He also spoke with a person who witnessed a massacre committed by the security forces. He said the reservists are often the ones killing people in Algeria.
28. After completing his military service in September 1991, Mr Haddid returned to his previous job in Algiers as a fitter and welder. The situation in Algiers was very bad at that time with killings every day. Eventually, he decided to quit his job. He had also been working voluntarily as a swimming instructor teaching women to swim and Islamic extremists had made verbal threats to him.
29. Mr Haddid said he left his job in about August or September 1996 because he was exhausted, because of the political situation in Algiers and because he could no longer stand the sound of industrial machinery. Mr Haddid said he had liked his job as a fitter and welder except for the noise and the machinery. He liked the people with whom he worked and this was how he got to know his best friend, Abdul Rahman, who later provided a reference for him dated 15 December 2002 (T p332). After leaving his job, Mr Haddid took a break before he started helping a friend, working casually for over a year as a shop assistant in the friend’s shop. He was also then still teaching swimming.
30. It was early in 1997, while he was staying with his family in Medea, that he received a recall notice for military service in the reserve. His mother answered the door to police who called to serve the notice. She told them that he was not at home but took the recall notice. Then, in late 1997, the police called at his home again with a second recall notice. He was on the balcony of the apartment at the time and saw the police coming and hid under the bed. His mother answered the door and again told the police he was not there and took the recall notice. Mr Haddid said if the police had found him at home when they brought the notice, they would probably have taken him by force.
31. Mr Haddid acknowledged that in between the January and November 1997 recall notices, he continued giving his weekly swimming lessons to a group of about 30 women, although he asked friends and colleagues to watch out for police who might be monitoring him. It was not until the end of 1998 that he finally stopped coaching after he received a threatening letter which was pushed under his door. The letter threatened that if he did not stop his swimming instruction he would be killed. He knew it was not uncommon for Islamic extremists to kill people and he thought his life was in real danger. It was at this time he saw a psychiatrist who diagnosed stress and prescribed medication. By then he had stopped working. For about two years before leaving Algeria, he did not work at all, spending most of the time with his family.
32. Mr Haddid said he was scared of the Islamic extremists but also of the military because of his failure to answer the recall notice for which he believed he might be imprisoned for up to 20 years. Moreover, he was scared because he feared that, if he served in the reserve force, he would be involved in having to kill his own people. The biggest massacres were by government forces.
33. Mr Haddid said during his last two years in Algeria he was in hiding, staying with friends and moving between his friends’ and his parents’ houses. Mr Haddid was asked about the use of identification cards in Algeria which bear the person’s picture and name. He said he used to use his brother’s card to move from one department to another in Algiers. He never had problems with his dress or appearance, although sometimes his identification was checked by police or municipal guards when he was travelling around the city. He said the government could not catch all those who did not respond to recall notices.
34. Eventually, because of the situation in Algeria and his fear of the Islamic extremists and of the military, Mr Haddid decided to leave Algeria. He had to pay a bribe to obtain a passport – bribes are common in Algeria. Then he had to leave the country illegally over the Tunisian border which was arranged and a bribe paid for this purpose by his father. From there he travelled to Turkey where he spent about two weeks before flying to France. In France, he spent some time with his brother and stayed with friends in different places. He worked part-time, buying and selling things. He spent about nine months in France but still did not feel safe there and did not apply for refugee status because he knew that if his application was rejected, which was likely, he would be deported to Algeria. He therefore obtained a false French passport which he used to travel to Holland and from there he flew to Australia. He obtained the false passport because he thought he would not be able to enter Australia using an Algerian passport. He therefore left his Algerian passport with his brother in France.
35. Mr Haddid said he took a lot of trouble to make the arrangements to come to Australia. Since the age of about 17, before the problems in Algeria, he had always dreamt of coming to Australia. His brother in France and his brother in Spain helped him with money, as did his parents, and his mother even sold some of her gold jewellery for this purpose.
36. Mr Haddid thought when he arrived in Sydney he would be able to go to a government office to apply for refugee protection and that he would be treated fairly. Therefore, when he was detained at the airport, he was very afraid and he did not tell the interviewers about his problems in Algeria. He thought everyone around the world would have heard about the situation in Algeria and so he did not go into any detail at that first interview and did not mention his military recall. He thought the interviewers would understand the situation in his country and he did not know how to respond to their questions. During his second interview with departmental officers at the airport, Mr Haddid told the interviewers of his fear as a result of his failing to answer the military recall as well as the threats from Islamic extremists and the oppressive treatment of Berbers. During the interview, he was told he would be detained and, afterwards, he was taken immediately to Villawood. When a couple of days later, he was taken back to the airport to be deported, he slashed his wrists (T p32). He was then taken to hospital and, after treatment, was taken back to Villawood.
37. On 21 September 2000, with the help of a lawyer, Mr Haddid completed a protection visa application. He saw this lawyer two or three times only. After lodging this application, he lived normally in Villawood with the rest of the refugee applicants and waited about six months before receiving a letter of rejection because the decision-maker said his claims were false. He appealed to the RRT with the assistance of his friend who helped him complete the application. He was not represented at the RRT to whom he provided original documents. The RRT affirmed the Departmental decision. After the RRT decision, Mr Haddid was scared that he might be deported and was not confident about his Federal Court appeal. He did not think that Algerians were being treated fairly.
38. When Mr Haddid was initially taken to Villawood, he was placed in Stage 1, the high security section, where he remained for seven months. He said he became exhausted by the situation which he found very difficult.. However for reasons he is not aware of, he was transferred to Stage 2 in about April 2001. He was glad of the transfer because he had some friends in Stage 2. Mr Haddid only learned of the escape plan one or two days beforehand, after he had been notified of the RRT’s rejection of his appeal. The people who planned the escape were in Stage 2 and, because he had been in Stage 1, he had not previously learned of their preparations. When he was told of the escape plan, his application for refugee status having been rejected twice, he thought he would give escape a go because he was afraid of being returned to Algeria. Otherwise, he had no hope. He knew it was an offence to escape from the detention centre but was not aware of how serious an offence.. Afterwards, he regretted his escape when he found himself with no work, no friends and no love.
39. Mr Haddid said he escaped with a group of others who all went their own ways. He had only about $50 cash from exchanging French currency at the airport and with other detainees in Villawood. After escaping, he took a taxi to a mosque in Auburn, of which he had heard beforehand, where he met some “Muslim guys” who helped him. He was given clothes and food and for about two days he slept in the parking lot next to the mosque. Then, some Muslim people helped him with accommodation. He told them he came from France and did not have accommodation. They also gave him food and clothes and he got work with the owner of a truck, assisting him with the loading and unloading of the truck and delivering groceries to various shops. The truck owner always did the driving. Mr Haddid told anyone who asked that he was French and needed to work, and did not reveal he was Algerian. He could not recall how much he earned doing this work. He said he did not spend very much money and when, finally, he was arrested by migration officers outside the house where he was staying in Auburn, he had savings of about $350. Back at Villawood, other Algerians also helped him with money and he was given money by other Muslims and Australians who visited him at the detention centre.
40. Mr Haddid said he met Ms Kirk on two occasions when she came to Villawood to visit detainees. He observed that she was quiet and he liked her. They played cards and talked to pass the time. They also spoke on the phone during this period. Mr Haddid chose to leave Australia by himself by purchasing a ticket so that he would be free to go where he chose, rather than risk being deported to Algeria. After he arrived in Kuala Lumpur, Ms Kirk phoned him and they spoke about their feelings for one another, acknowledging that they were mutually attracted. He suggested that she should come to Malaysia and they would discuss their relationship. During the course of a series of later phone calls, they even discussed the possibility of marriage. Mr Haddid said he is naturally shy but he had mentioned to his friends his feelings for Ms Kirk before he left Australia.
41. On her first visit to Malaysia, Mr Haddid took Ms Kirk to the mosque to get a blessing for their relationship. Then, on her second visit in March 2003, they took part in a Muslim marriage ceremony at a mosque so that she is recognised as his wife according to Islamic law. Mr Haddid said their relationship is really good and improving. Ms Kirk wishes to get married in Australia in the presence of her family and friends. He said they had discussed the possibility of having children and Ms Kirk has some concerns about this. However, she wishes to be a mother and his wish is to make her happy. They have not discussed how the children would be brought up, but Ms Kirk is not opposed to children being brought up in the Muslim faith.
42. Apart from Ms Kirk’s two visits to Malaysia, Mr Haddid said they have kept in contact by e-mail and phone and Ms Kirk has supported him by giving him access to her savings account. Mr Haddid has lived mostly in Malaysia but he has had to go to other countries and then re-enter in order to renew his visitor visa. He acknowledged that he had worked illegally in Malaysia for about three weeks giving swimming lessons to some young men, although this only involved a few lessons a week. He tries to help himself if he can and has looked for a job and would do anything if it came from a good source. Otherwise, he has had to rely on Ms Kirk for financial support and he manages on what she sends him. He pays rent for a room and buys food and a few cigarettes and occasionally he buys a coffee.
43. Mr Haddid said he spends his time going to the library, going to the French Cultural Centre, walking and going swimming. He finds it hard to be on his own. At first, he found the climate in Malaysia very hot and humid but he is becoming used to it now. He is still waiting. He does not know why the processing of his application has taken so long.
44. Mr Haddid agreed that he could live in France or another country. He and Ms Kirk have discussed the possibility of going to South Africa but she has rejected this idea because of the situation there. If he is not granted a visa, he will try and find another country where he can seek refugee status rather than return to Algeria. He has not discussed this with Ms Kirk. If his application is refused, he will do so but he still has hope of obtaining a visa for Australia.
45. Mr Haddid was asked about the two military recall notices, dated January and November 1997, the originals of which he produced to the Department. He denied that the originals were forged and said that other now Canadian based Algerian refugees also received call-up notices in 1997. His parents sent the originals to his brother in France who forwarded them to Mr Haddid in Australia. Mr Haddid acknowledged that during the course of the RRT hearing, he was confused about the year the notices were issued and said that this was 1996 when in fact it was 1997. Nevertheless, he was correct about the month of issue of the two notices.
46. Mr Haddid was asked about his Algerian passport which he left with his brother in France and which Mr Haddid had claimed his brother had lost when he moved house. Mr Haddid acknowledged that he lied about this. He was reluctant to produce his passport at first because he was afraid that he might be deported to Algeria. It was when, after he was detained at Villawood on the second occasion, after his escape, that the Department sent his documents to the Algerian Embassy in Indonesia to obtain a travel document for him, that he contacted his brother in France and asked him to send Mr Haddid’s Algerian passport. The problem with the Department having told his story to the Algerian Embassy in Jakarta is that the Embassy now knows his story. They refused to issue him with a travel document unless original identification documents were supplied rather than just copies, so that they could check his identity. Mr Haddid refused and decided to instead obtain his Algerian passport from his brother so that he could choose the destination to which he flew from Australia. Mr Haddid said he has had contact with his family and friends in Algeria since leaving and has learned from them that the situation there is no different. He still believes that he is liable to imprisonment of up to 20 years for failing to answer the recall notice for military service.
Hammadi Jemari
47. Mr Jemari was born on 20 October 1980 and is aged 23. He has now been granted a temporary protection visa following a decision by the RRT that he is a refugee. Mr Jemari is currently unemployed and living in Lakemba. He has in the past worked as a carpenter, although he has no specific qualifications.
48. Mr Jemari left Algeria at the age of 10, having lost his mother and father, and crossed illegally into Spain by boat without a passport. He spent three years in Spain and then two years in France and two years in Italy before, at the age of 17, stowing away on a container ship bound for Australia. When he arrived in 1998, he was still only 17 and could not find anyone to help him. He was detained in the Perth Detention Centre before being moved to Villawood in 2001. He spent one week in Stage 1 and was then transferred to Stage 2 not long after Mr Haddid was transferred to Stage 2, whom he met there. Altogether Mr Jemari spent about nine months in Villawood at the same time as Mr Haddid and got to know him well. They often talked together and Mr Haddid did a lot for him, including helping him to enjoy his life. Mr Haddid cares about people and cared about him. Everyone liked Mr Haddid, even the guards. After five years in detention centres, Mr Jemari was very tired. Every day, he would have the same routine and he desperately missed the normal outside world where there were different things happening all the time. He felt that he was starting to go crazy. At various times, he went on hunger strikes, tried to kill himself and was sent to a mental hospital.
49. Like Mr Haddid, Mr Jemari did not become aware of the planned escape from Villawood until about two days beforehand. Others had been planning the escape for about three months. Mr Jemari felt he could no longer tolerate life in Villawood so he escaped and went to New Zealand. Twenty three detainees escaped through a tunnel, including Mr Haddid, and they all went their separate ways. About two months after his escape, Mr Jemari managed to obtain a false passport and found people to help him. He then travelled to New Zealand where he went to the Department of Immigration, told them he had false documents and said he was a refugee. He told them what had happened and sought their help. However, he was imprisoned in a New Zealand jail for three months and then returned to Australia. Eventually, the RRT found him to be a refugee and he was issued with a temporary protection visa.
Submissions
Applicant
50. Ms Kirk contended that Mr Haddid made a valid protection visa application on arrival in Australia. She said his situation has not been properly examined and he has not had a fair go. At the airport, prior to his initial interview he was scared, crying and very tired. At this first interview, Mr Haddid did not know who was interviewing him and, in particular, whether they were immigration officers or, as he suspected, security guards. He was given little information and was reluctant to talk to military type personnel, preferring to wait until he had the opportunity of speaking to immigration officials. By contrast, at the commencement of Mr Haddid’s second interview, he was given a fuller description of what was to happen in the interview and, therefore, was prepared to give a full explanation as to why he was afraid of returning to Algeria.
51. Ms Kirk said the record of the second interview on 18 September 2000 is merely a summary and not a transcript. As a result of that interview, Mr Haddid was screened out and arrangements were made with KLM, the airline on which he had arrived in Australia, to return him to Europe. Little attention was paid to Mr Haddid’s fear of being deported to Algeria, evidenced by his slashing his wrists in order to try and avoid this.
52. Ms Kirk referred to the June 1995 recommendations on the treatment of Algerian refugees and asylum-seekers in Europe by the European Council of Refugees and Exiles (A2). The Council expressed its concern about the situation of Algerian refugees in European countries and the extremely low recognition rate under the Geneva Convention, for example of only 1% of applicants in France in 1994. Particular attention is drawn to asylum-seekers who claim to have been threatened by militant Islamic groups.
53. With regard to the military recall notices produced by Mr Haddid, Ms Kirk noted that the RRT found there had been no Presidential decree authorising the call-up in 1997. However, the original recall notices were not analysed by the RRT. Ms Kirk provided a report dated 4 July 2003 prepared by Paul Westwood, a Handwriting and Questioned Document Examiner (A1). Mr Westwood concluded that whilst it was not possible for him to arrive at a definitive finding as to the genuineness of the two recall notices dated 20 January 1997 and 20 November 1997 in the absence of known control contemporaneous documents, the evidence provided “strong support” for the proposition that both documents are genuine.
54. In the October 2002 Report on Algeria (A2), produced by the Country Information Policy Unit of the UK Home Office, there is reference to the Algerian Government having possibly recalled a number of reservists in the autumn of 1997 in order to maintain security during the October 1997 municipal elections. However, the Report also makes reference to a military attache of the Algerian Embassy in Washington stating that the Algerian Government did not recall reservists in January 1997, and an Amnesty International Report on Algeria for 1997 stating that, in January 1997, the Algerian Prime Minister signed an executive decree which made the existence of militias official and entrusting those militias, who might comprise groups of individuals recruited arbitrarily, to carry out law enforcement tasks which would otherwise be the responsibility of the State (A2).
55. Ms Kirk referred to other internet documents, copies of which she had obtained (A2), which record Government troops having been involved in massacres in Algeria. Other reports, for example that of the US Committee for Refugees (A2) detail the violence by armed Islamic groups, with particular reference to September 1997. She referred to the Home Office Report on Algeria which (at p14) refers to the punishment for desertion being, in some instances, imprisonment for up to 20 years with forced labour. Ms Kirk contended that Mr Haddid’s claims that he had been disadvantaged as a Berber had been over-emphasised by the Department and insufficient attention had been given to his claims that he feared punishment as a result of being a draft evader and because of threats from Islamic extremists.
56. In a written submission on the Respondent’s report on the interview between two departmental officers and the Algerian Ambassador to Kenya conducted on 8 January 2004, Ms Kirk referred to the Amnesty International Country Reports for Algeria dated 1998 and 2003 covering the situation in the previous 12 months. Those reports detail massacres and killings by security forces, state-armed militias and armed groups. No such background is included in the interview report which makes no reference to 1997, the year in which Mr Haddid received the two military recall notices. The Ambassador’s comments appear to relate mainly to the present day.
57. With regard to the form of the military recall notices, the information provided by the Ambassador that a military recall notice may take the form of a telegram which also serves as a travel authority or of “a half-A4 summons, delivered by hand by the Gendarmerie … [who] may visit the home of the summoned individual on several occasions in order to ensure it is received” is consistent with Mr Haddid’s claims and the documents provided. While neither were in the form of a telegram, they both included an authority to travel. The features of the recall notice (ordre d’appel) described in the European Country of Origin Information (ECOI) report on Algeria of October 2002 are consistent with the recall notices provided by Mr Haddid except that his notices were on buff coloured paper.
58. The information provided by the Ambassador is that:
If an individual is summoned to perform National Service and does not present he is considered an “outlaw”.. If the Gendarmerie intercept such an “outlaw” he is taken immediately to a military institution, or a “castle”.
Ms Kirk said this is consistent with Mr Haddid’s claim that if he did not answer the recall notice, he was in danger of being arrested. As to the statement that those arrested might be required to serve “in one of the more difficult areas, for example on the border regions”, Ms Kirk asserted that there is clear evidence in the 1998 Amnesty Report of those arrested being tortured or disappearing. Finally, with regard to the Ambassador’s information that “There is no law that states individuals who attempt to avoid National Service will serve a prison sentence”, reference is made to there being no record of any cases being heard before a civilian judge. However, the offence in question is contrary to the 1971 Military Penal Code which provides a prison sentence of between two and ten years for draft evasion in “wartime” which is defined to include where there is a declared state of emergency. Algeria has been in such a state since 1992.
59. Ms Kirk noted that with the copy of the RRT decision dated 27 June 2001, Mr Haddid also received a letter of the same date stating that he could appeal within 28 days but was liable to removal from Australia on two days notice. Thus, when an opportunity arose at short notice to escape on 19 July 2001, he took that opportunity rather than risk being deported.
60. With respect to Mr Haddid having lied about the existence of his Algerian passport, Ms Kirk said he did this and therefore did not provide his passport in order to avoid being deported to Algeria. She noted that on arrival in Australia, when Mr Haddid was questioned about his false passport at the airport, he almost immediately conceded that it was false and sought to explain his situation.
61. With regard to other issues raised by the Respondent as to Mr Haddid’s credibility, Ms Kirk said that Mr Haddid’s evidence is that as soon as he received a written threat from the Islamic extremists, he stopped his swimming coaching. As to comments made about Mr Haddid’s visiting the mosque in Kuala Lumpur and giving money to others, Ms Kirk pointed out that the giving of alms and going to the mosque are part of a Muslim’s daily activities.
62. Ms Kirk referred the Tribunal to evidence of Mr Haddid’s good character, both from Mr Jemari and Ms Everitt. Ms Everitt gave evidence of Mr Haddid’s kindness to an Australian woman whose husband was serving in the Australian Embassy in Bangkok, and how Mr Haddid visited the woman daily in hospital before she was repatriated to Australia for further treatment of what was diagnosed as terminal cancer (see also T p330).. Ms Kirk also noted that Mr Haddid has been very conscious of a need to have a valid visa while in either Malaysia or Thailand over the past 18 months because of the three month limit on visitor visas. He has moved between one country and the other and on one occasion travelled to Hong Kong in order to ensure that he has a valid visa.
63. With regard to exercise of the s 501(1) discretion and the guidance provided by Direction No 21, Ms Kirk submitted that while Mr Haddid was aware of the seriousness of his misconduct, he felt he had no other option than to do what he did to avoid the risk of being deported to Algeria. There is a negligible risk that he will re-offend. The safety of individuals in the Australian community was not at any stage at risk because of Mr Haddid’s actions, and, indeed, the community are divided on the need for immigration detention for asylum-seekers.
Respondent
64. Mr Allatt said the Respondent contends that Mr Haddid fails the character test because of his past general conduct. He entered Australia on a false passport for which, the evidence suggests, he probably obtained a false visitor visa to obtain entry. With regard to his protection visa application, Mr Allatt noted that the claims made in the application are more substantive than those which Mr Haddid made in his first interview at the airport. His claims were examined by the RRT which concluded that he did not have a well-founded fear of persecution in terms of the Refugees Convention. Mr Allatt said some of Mr Haddid’s claims do not make sense: for example his continuing to provide swimming instruction for women if he was in fear of Islamic extremists and his remaining in Algeria for another three years after the threats before he finally left the country. Mr Allatt contended Mr Haddid could have sought refugee status in Europe but chose not to do so, perhaps because he had a boyhood dream of coming to Australia. If Mr Haddid’s recall notices are fraudulent, Mr Haddid’s credibility would be significantly undermined.
65. Mr Allatt said escaping from immigration detention is a serious offence under the Act and, pursuant to s 197A, carries a penalty of up to five years imprisonment.
66. With regard to the exercise of the residual discretion under s 501(1) of the Act and the guidance provided by Direction No 21, Mr Allatt said Mr Haddid committed a number of serious offences including the use and provision of a false passport in order to obtain entry to Australia, providing false or misleading statements in connection with his entry or stay in Australia – at the very least in relation to his application for a visitor visa, and escaping from immigration detention. The Tribunal must also, however, take into account any mitigating factors such as whether Mr Haddid truly believed he was a refugee. Regard should be had to the RRT’s decision in this respect. The RRT found:
the Applicant was not a credible witness and that he had fabricated his claims. I find that he does not have a well-founded fear of persecution for reasons of a Convention ground.
67. Mr Allatt contended that Mr Haddid has demonstrated a willingness to make false statements and present bogus applications to the Department and there remains a real risk that he would offend again should he deem it expedient. The refusal of a visa in such a situation will have a deterrent effect and, given the seriousness of Mr Haddid’s misconduct, the Australian community would expect that his application for a visa would be refused.
68. With regard to other relevant considerations, Mr Allatt noted that Ms Kirk was aware of Mr Haddid’s immigration status when she commenced a relationship with him. While the Respondent concedes that there may be compassionate considerations in respect of Ms Kirk, the Respondent does not concede the genuineness of the relationship, noting the circumstances as to its commencement, the relevant ages of the parties and Ms Kirk’s activist background. Accordingly, the Respondent submits that the discretion under s 501(1) should not be exercised in Mr Haddid’s favour and the application under review should be affirmed.
Application of the Law and Findings
69. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Haddid passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry …
70. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
71. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Haddid does not pass the character test, the Tribunal will proceed to consider whether to exercise the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
72. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case and where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or 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 and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
73. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. Mr Haddid was born in Medea in Algeria of Berber ethnic background. While the Berbers may have been discriminated against, there is no evidence that Mr Haddid suffered any substantial persecution as a Berber. After leaving school at the age of 15, Mr Haddid moved to Algiers where he worked as a fitter and welder until being called up for military service in 1990. After completing 21 months service, in about September 1991, he returned to his former employment where he continued to work until about August/September 1996. His evidence is that he left his job because of the political situation in Algiers, because he felt exhausted, and because he could no longer stand the noise of industrial machinery. By this time, he was also providing occasional swimming instruction to women as a volunteer and was the subject of verbal threats from Islamic extremists.
74. In January 1997, Mr Haddid received his first military recall notice, dated 20 January 1997, requiring that he report for further service in the military as a reservist (A1). He ignored this. He received a further notice dated 20 November 1997 which he also ignored (A1). Both the RRT and the Respondent doubted the genuineness of these recall notices although the RRT referred to country information dated November 1997 from a Dr Larbi Sadiki that “Algerian authorities were calling up reservists who had only done 18 months of military service … to serve for an extra six months” (T p141). Ms Kirk also referred the Tribunal to a UK Home Office Country Information and Policy Unit Report on Algeria dated October 2002 which refers to there possibly having been a recall of reservists in October 1997, and to an Amnesty International Report on Algeria for 1997 which refers to a January 1997 executive decree legitimising militias who could then be entrusted with law enforcement tasks (A2).
75. Ms Kirk provided an expert report from a document examiner, Paul Westwood, dated 4 July 2003 (A1), who concluded that while it was not possible to arrive at a definitive conclusion as to the genuineness of the two military recall notices in the absence of known control contemporaneous documents, an examination of the notices provided strong support for thinking that they are genuine. The report of the interview with the Algerian Ambassador to Kenya also provides some support as Ms Kirk contends in paragraph 57 above. Thus, while the Tribunal is unable to arrive at any definitive conclusion on the genuineness of the military recall notices, there is evidence to support a conclusion that they are genuine.
76. Mr Haddid worked casually as a shop assistant for his friend in Algiers for over a year in the period 1997 to 1998. He also continued his work as a volunteer swimming instructor. However, towards the end of 1998, he stopped coaching after receiving a written warning put under his door threatening his life if he failed to comply. It was at about this time that he stopped working and then, according to his evidence, spent the next nearly two years preparing to leave Algeria.
77. Mr Haddid said he left Algeria on 7 January 2000 crossing illegally into Tunisia with the assistance of a bribe paid by his father. He travelled to Turkey from where he flew to France where he spent approximately nine months staying with his brother and other friends, and supporting himself by buying and selling goods. He did not apply for refugee status in France because of what he perceived to be the unsympathetic attitude taken in France towards Algerian refugees and the risk that if his application was unsuccessful, he would be deported to Algeria. He had a boyhood dream of going to Australia and therefore purchased a false French passport and flew from Holland to Sydney, arriving on 18 September 2000.
78. Mr Haddid was detained at Sydney airport where he was questioned and admitted to using a false passport (T8). The false passport probably also contained a visitor visa obtained under false pretences, although there is no evidence of this before the Tribunal. Mr Haddid was then interviewed by a Departmental officer (T4) and taken to Villawood. On 20 September 2000, Mr Haddid was taken back to Sydney Airport, apparently with a view to his being deported. However, when he slashed his wrists in the airport cells (T p32), he was taken to Bankstown Hospital for treatment and then returned to Villawood. On 21 September 2000, with the assistance of a lawyer, he applied for a protection visa (T7 p36).
79. On 22 March 2001, Mr Haddid’s application was refused by a delegate of the Respondent (T15). Mr Haddid appealed to the RRT, completing the application with the assistance of a friend. The RRT did not consider Mr Haddid a credible witness (T16 p141). The RRT rejected his claims to “any problem or difficulty on account of his being Berber”, found that he had manufactured his story of receiving the military recall notices, and refused to accept his claim of threats from “fanatic Muslims” as a result of his work as swimming instructor. Nevertheless, the RRT accepted that Mr Haddid had a general fear of the situation in Algeria, although not accepting that he had ever been involved in activities which would result in him being of adverse interest to anyone (T16 p145).
80. The Tribunal has found it difficult to come to any definitive conclusion about Mr Haddid’s claims of persecution. Essentially, it is a matter of his credibility and whether the Tribunal believes his account. There is no dispute that the political situation in Algeria was unstable, that both Government forces and Islamic extremists were involved in violence, torture and killings, and that the civilian population was targeted by both. Berbers also seem to have been subjected to political and cultural repression.
81. In the Tribunal’s view, it is understandable that Mr Haddid wished to escape from the situation in Algeria and, like many others claiming to be refugees, may have exaggerated his account. Unlike the RRT, the Tribunal did not find Mr Haddid’s evidence lacked credibility. The Tribunal accepts that he was afraid of returning to Algeria, and that there may be some truth to his claims concerning the threats made by Islamic extremists and to his account of evading a recall for military service in the reserve. The Tribunal finds, contrary to the view expressed by the RRT, that it is more likely than not that the two recall notices dated 20 January 1997 and 20 November 1997 are genuine. In so finding, the Tribunal relies on the report of the document examiner, Paul Westwood, dated 4 July 2003 (A1) and on Mr Haddid’s oral evidence which is supported by the report of the interview conducted on 8 January 2004 with the Algerian Ambassador to Kenya as to the description of the notices and how they are served, detailed by Ms Kirk in her submissions referred to in paragraph 57 above.
82. The information given by the Algerian Ambassador also suggests that those who do not answer a recall notice and who are thereby considered “outlaws”, may be arrested and subject to some form of sanction. The evidence presented by Ms Kirk states that pursuant to the 1971 Military Penal Code, draft evaders may be liable to imprisonment for two to 10 years where a state of emergency has been declared as has been the case in Algeria since 1992 (A2 – INS (Immigration and Naturalisation Services) Resource Information Center, Washington, DC). Thus, while Mr Haddid may have exaggerated the sanction that he might have faced for failure to answer the military recall notice, there appears to be a basis for his fear of being arrested and possibly imprisoned or, as the Ambassador stated, “serving in one of the more difficult areas, for example on the border regions”. The Tribunal therefore accepts that Mr Haddid’s actions were motivated, at least in part, by fear of returning to Algeria.
83. Mr Haddid was notified of the RRT decision on 27 June 2002 and, by letter of the same date from an immigration officer located at Villawood, Mr Haddid was notified of his right to appeal to the Federal Court and that the Department could, nevertheless, remove him from Australia during this period (A3).
84. On 17 July 2001, Mr Haddid lodged an appeal with the Federal Court. According to his evidence, at about that time he learned of the escape from Villawood being planned by other detainees. He decided to take the opportunity because he was afraid of being deported to Algeria. On 19 July 2001, Mr Haddid, Mr Jemari and a number of others escaped, each going their separate ways. Mr Haddid sought help at the Auburn Mosque where he was given food and clothing. Later, he found accommodation and did casual work assisting with the loading and unloading of a small truck and with delivering groceries. On 14 November 2001, Mr Haddid was detained in Auburn and returned to Villawood. In the meanwhile, his Federal Court appeal was dismissed on 4 September 2001 when the Court was informed that he had absconded.
85. Mr Haddid acknowledged that he had lied to the Department about his Algerian passport when he told them he had left this with his brother in France who had lost it in the course of moving house. He was frightened that if he admitted to having this passport, it would enable the Department to deport him to Algeria. However, when the Department contacted the Algerian Embassy in Jakarta to obtain a travel document for him to facilitate his deportation, Mr Haddid decided that he preferred to leave of his own accord so that he could choose his country of destination. He therefore contacted his brother in France who forwarded his passport to him (T p86).
86. Mr Haddid first met Ms Kirk at Villawood on 23 February 2002 when she visited the Algerian detainees there in the company of other members of a peace activist group. She visited on one other occasion before Mr Haddid departed Australia on 25 March 2002, but they spoke together regularly on the phone. Since then, Mr Haddid has been mainly in Kuala Lumpur but has also spent time in Thailand and has made one visit to Hong Kong. He has to leave Malaysia and return every three months in order to renew his visitor visa.
87. Mr Haddid is supported financially by Ms Kirk. He admitted that he gave a few swimming lessons over a three week period, but has otherwise not worked. Ms Kirk has been to visit him in Malaysia twice. They both state that they want to marry and, on Ms Kirk’s last visit in May 2003, they underwent an Islamic wedding ceremony at a mosque in Malacca.
88. Turning to whether Mr Haddid passes the character test, the Tribunal has found that Mr Haddid committed a number of serious immigration offences. He entered Australia using a false passport, escaped from immigration detention and during this time worked unlawfully, and lied about his Algerian passport. The Tribunal notes the evidence of Jacqueline Everitt and Hammadi Jemari as to his good character – that he is a “good, kind, honest and infinitely decent” man (T p331) – and their accounts of his caring attitude and kindness. Nevertheless, in the Tribunal’s view, Mr Haddid’s misconduct is such as to warrant a finding that he does not pass the character test.
89. Having decided that Mr Haddid does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether to not refuse the grant of a visa to Mr Haddid. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
90. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
91. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
92. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
93. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”.. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
94. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
95. With regard to the first primary consideration, there is no question that Mr Haddid has committed serious offences against the Act. For example, a person escaping from immigration detention is liable to a term of imprisonment of five years pursuant to s 197A of the Act. Under s 234(1), knowingly making a false or misleading statement in connection with the person’s entry or stay in Australia is a an office punishable by up to 10 years imprisonment. Nevertheless, in Mr Haddid’s case, the Tribunal recognises that there are mitigating factors related to his fear of being deported to Algeria and the consequences that might follow this.
96. In the Tribunal’s view, the risk of Mr Haddid’s re-offending is low. He has taken considerable pains to ensure that his immigration status in Malaysia has remained legal even though this has necessitated his leaving the country every three months to renew his visitor visa. It is now more than 18 months since Mr Haddid departed Australia. The Tribunal recognises that the refusal of a visa in a case of misconduct may have a deterrent effect on others contemplating similar misconduct but this is not in itself a conclusive factor.
97. With regard to the second primary consideration, the expectations of the Australian community, in the Tribunal’s view, the community would take a compassionate view of Mr Haddid’s situation, noting that his misconduct was motivated by his trying to escape from Algeria and the overt violence and repression both from Government forces and Islamic extremists. Regard should also be had to his relationship with Ms Kirk and their desire to marry.
98. The third primary consideration, the best interests of the children, is not relevant to this matter.
99. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
100. The Tribunal finds that Mr Haddid and Ms Kirk have established a loving relationship. That relationship has been ongoing for more than 18 months although the time they have spent together has been relatively short. In part, this has been necessitated by Ms Kirk’s need to maintain her employment in order to support them both. It would be easy to suggest that Ms Kirk is motivated, at least in part, by her political activism and that Mr Haddid is motivated by his desire to live in Australia. However, the Tribunal notes that they have been through an Islamic marriage ceremony and are hoping for Mr Haddid to be granted a visa so that they can go through a civil ceremony in Australia in the presence of Ms Kirk’s family and friends. It is Ms Kirk’s evidence that she wants children.
101. Obviously, Ms Kirk knew of Mr Haddid’s immigration status at the time they commenced the relationship and would have been aware of the difficulties he would face in obtaining a visa.
102. Both Ms Kirk and Mr Haddid have been subjected to emotional and financial hardship as a result of their separation. They have endured this knowing that the immigration process would take a significant time. The Tribunal has already referred to the evidence of Ms Everitt and Mr Jemari as to Mr Haddid’s good conduct. The Tribunal was particularly impressed by Ms Everitt’s account of the care Mr Haddid showed to a terminally ill Australian woman in Bangkok (T p330). The evidence of these two witnesses indicates that Mr Haddid is a caring and considerate man.
103. Weighing up the primary and other considerations, in the Tribunal’s view, Mr Haddid is no real threat to the Australian community who would expect that a compassionate approach should be taken to this matter, bearing in mind Mr Haddid’s background and desire to escape Algeria and the other considerations to which the Tribunal has referred. Thus, the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion in s 501(1) of the Act to not refuse the grant of a visa should be exercised in favour of Mr Haddid.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 22 and 23 September 2003
Date of Decision 10 March 2004
Representative for the Applicant Self representedRepresentative for the Respondent Mr M Allatt, Solicitor, Australian Government Solicitor’s office
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