Malti and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 987
•6 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 987
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/517
GENERAL ADMINISTRATIVE DIVISION ) Re MAZINA MALTI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis A.M. Q.C., Deputy President Date6 October 2005
PlaceSydney
Decision The decision under review is affirmed.
[sgd] The Hon R N J Purvis A.M. Q.C. Deputy President
CATCHWORDS
IMMIGRATION – spouse (provisional) subclass 309 visa –Visa Applicant not of good character – criminal history in Lebanon – term of imprisonment – prior application for visas refused – defective statutory declarations – false evidence reflecting on visa applicant - seriousness of criminal conduct not accepted – no remorse – risk of anti-social conduct – community not to be put at risk – children equally well off in Lebanon as in Australia - no measurable hardship to children – decision affirmed
Migration Act 1958 section 501
Ministerial Direction 21
REASONS FOR DECISION
30 September 2005 The Hon R N J Purvis A.M. Q.C., Deputy President the application
1. Mrs Mazina Malti (“the Applicant”) has applied to the Tribunal for the review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 23 February 2005. By such decision, the Respondent refused to grant to Mr Abdullah El Masri a Prospective Marriage visa. Mr El Masri was found to be a person not of good character. The discretion available to the Respondent was not exercised in his favour.
2. The Statement of Reasons of the Respondent in support of the refusal decision contained, among other findings, a series of considerations supporting the decision. It is relevant to refer to them at this stage as they highlight the matters of concern in this appeal. They are relevantly as follows:
“…
“14. Mr EL MASRI provided his Republic of Lebanon Penal Record which disclosed that he was found guilty of Stealing on 14 July 1999, and was sentenced to imprisonment for one year.
15. Mr EL MASRI‘s offence is considered by the Government to be very serious.
…
26. The serious offence committed by Mr EL MASRI was Stealing. It is open for you to find that refusal of Mr EL MASRI’s visa application may serve as a deterrence factor against others committing similar offences. The Government has a strong interest in deterring others from committing offences of this nature.
…
27. The stealing offence committed by Mr EL MASRI is considered by the Government to be very serious. The Australian community expects non-citizens to be a good character if they wish to enter Australia. The Australian community expects that it may be appropriate to refuse a visa application by such a person.
…
51. Having regard to the above factors, I am of the view that there is a moderate chance that Mr EL MASRI might engage in conduct bringing him within the scope of section 501. I gave these matters moderate weight.
…
53. I also gave primary consideration to the expectations of the Australian community. In accordance with the Government’s view that is expressed in the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia.
54. In view of the serious nature of MR EL MASRI’s stealing offence, I believe that the Australian community would expect Mr EL MASRI’s visa application to be refused. I gave substantial weight to this consideration.
…
57. I accept that the best interests of the child would be met by having both parents available to him during his formative years, and that the refusal of Mr EL MASRI’s visa application would cause hardship to his child. I gave this matter substantial weight.
…”
the hearing
3. At the hearing of this application the Applicant was represented by Mr Mohammed Maarbanni, migration agent of Worldwide Migration Services and the Respondent by Mr Anthony Cox, solicitor of Phillips Fox Lawyers.
4. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T15. Material was tendered by the parties, admitted into evidence as exhibits and marked accordingly:
Exhibit No
Description
Date
1
Copy of Orders from the Family Court of Australia
14 July 2005
A
Statutory declaration of El Cherkawi
27 July 2005
B
Statutory declaration of Ali Ammoun
27 July 2005
C
Medical Notes of Dr Ahmed Mohamad
15 July 2005
5. Oral evidence was given by the Applicant, Mr El Masri, Mr Ghassen El Cherkawi, Mr Ali Ammoun and Dr Ahmed Mohamad upon which they were each cross-examined.
the issues for determination
6. Whilst it was not conceded at the hearing that Mr El Masri is a person not of good character, the issue was not seriously debated by Mr Maarbanni. It will however be considered in these reasons and a decision reached.
7. Other aspects that are to be taken into account, although of lesser significance, include possible disruption to his family, hardship to the Applicant and any compassionate considerations.
relevant statutory provisions and ministerial direction
8. Section 501 of the Migration Act 1958 (“the Act”) relevantly provides that:
“501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
….
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection 7)); or
(b)…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
…
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
9. Section 501 (7) provides that:
“Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…”
10. If the Tribunal is satisfied that the Applicant does not pass the character test, then the discretion provided for by section 501(2) of the Act is available to it. In exercising the discretion, Ministerial Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that Direction. The relevant primary considerations are the nature and seriousness of Mr El Masri’s criminal conduct and factors relevant to the protection of the Australian community including questions of recidivism together with the expectations of that community. There are also a number of children whose welfare is a primary consideration. Others considerations deemed by the Direction to be relevant are the genuineness of a relevant marriage, the degree of hardship that would be caused to immediate family members lawfully resident in Australia, evidence of rehabilitation and any recent good conduct, the nature of the visa, the subject of the application as well as the purpose and intended of duration of the entry into Australia. Compassionate circumstances may also be relevant.
11. It is not necessary in these reasons to set out in detail the relevant paragraphs of Ministerial Direction 21. Suffice to say that paragraph:
·1.8 – sets out factors that are to be taken into consideration in relation to past and present criminal conduct
·1.12 – provides that the decision-maker must look at whether there is a risk of future adverse conduct and the likelihood that a non-citizen would engage in anti-social conduct.
·2.6 – sets out examples of offences which are considered by the Government to be very serious amongst which are home invasion and assault.
·2.7 – states that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct against the community.
·2.10 - includes factors relevant to an assessment of whether there is a risk of recidivism.
·2.12 – deals with the expectations of the Australian community.
criminal history of the applicant
12. The criminal history of the Applicant, as detailed in his penal record, validated by the Republic of Lebanon Directorate General of the Interior Security Forces, is as follows:
Decision Date
Court Issuing Decision
Offence Nature
Penalty
25-10-1996
Military Penal Court
Selling a gun
Fine 300,000 L.L.
26-3-1997
Court of Batroun
Disturbance
Fine 30,000 L.L.+ duties
14-7-1999
Penal Court of Mount Lebanon
Stealing
One year in prison
25-10-1996
Military Penal Court
Selling a gun
Fine 300,000 L.L
It is noted that the offence of stealing a gun is mentioned twice in the penal record. It seems, in the evidence, that there was only one such offence committed in respect of which a decision was handed down on 25 October 1996.
relevant facts and findings of facts
13. Mr El Masri was born in Lebanon on 6 May 1973. The Applicant was also born in Lebanon on 5 May 1966. The Applicant and Mr El Masri are related. His mother being a cousin of the Applicant.
14. The Applicant and Mr El Masri were married on 30 June 2004 and have a son Samir born on 27 October 2004. This was the third marriage of the Applicant. She has two children of each of her first and second marriages. Mr El Masri had been previously married with not any children. It is noted that on the Notice of Intended Marriage the Applicant is recorded as having been already married “3 times” – in 1981, 1994 and 1996 with seven children born – in 1982, 1983, 1984, 1991, 1992, 1997 and 1999. She said in her evidence, before the Tribunal, that these particulars are not correct but gave no explanation of how they came to be on a form signed by the Mufti of the Lakemba mosque.
15. The Applicant first entered Australia with her then husband in 1995. She had prior to that time obtained a divorce from her first husband, by whom she had two children now 14 and 13 years of age. The children are presently living in Australia; the 13 year old child with an uncle and the 14 year old daughter “most of the time” with the Applicant.
16. After their arrival the Applicant and her husband obtained accommodation in Sydney. Of their marriage two children were born, a boy and a girl, now seven years and six years of age, both of whom are living with the Applicant. Of their marriage two children were born, a boy and a girl, now seven years and six years of age both of whom are living with the Applicant. Two years after her arrival in Australia, the Applicant returned to Lebanon staying there for a period of five months. Thereafter, she went to Lebanon every couple of years for a holiday “staying up to six months at a time with her sisters”.
17. Over the ensuing years, according to the Applicant, her husband began to ill treat her and by 2002 they were “not getting on”. In that year, with the two younger children, the older two remaining in Australia, she again returned to Lebanon staying there from March 2002 to November 2002. It was during this period that she began to spend time with Mr El Masri. She had rented a house in Lebanon. She did not work and relied upon monies she received from Centrelink of $700 to $800 per fortnight for the maintenance of her children and herself.
18. The Applicant returned to Australia with the children and remained here until May 2003 when she returned to Lebanon, this time without the children. The two younger children’s father had seemingly obtained an order of The Family Court of Australia restraining the Applicant from removing the children from its jurisdiction. The existence of this restriction was initially advanced by the Applicant to create a reason in support of her being unable to join her present husband in Lebanon. However the restriction had been, by consent, removed in July 2005. The orders then made as they now are and as relevant to this decision, are as follows (Exhibit 1):
“…
5 That the Applicant Father signs all document and does all things necessary to enable the children to travel overseas whether the purpose of such travel is for short periods on account of annual holidays or for the purposes of relocation of the Respondent Mother and the children for an extended period.
6 That the Australian Federal Police withdraw the children’s names from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
7 I order that both parties be restrained from placing or causing the children’s names to be placed on the Airport Watch List by the Australian Federal Police without further Order of the Court or by agreement in writing between the parties.
8 That the children have residence with the Respondent Mother at all times when they are overseas, whether for short holidays or for extended periods.
…”
19. The Applicant’s second marriage was dissolved in June 2003. She began living with Mr El Masri and remained in Lebanon until February 2004 when she returned to Australia with her then two younger children. She gave birth to the child of her third marriage on 27 October 2004. Presently there is no impediment to the Applicant’s son Samir and the two children of her second marriage or indeed the children of her first marriage, living in Lebanon. The father of the Applicant’s two older children of the Applicant’s five children is himself living in Lebanon.
20. The Applicant was well aware of Mr El Masri’s criminal background when they began their relationship. She was aware of his having sold a gun of his “working with friends and entering a house” and of his being convicted and spending a year in jail. She did not and does not think of it as a serious crime. She had seen his file of criminal acts “also including annoying neighbours”. She also knew, at the time of the marriage, that the children of her second marriage were not then able to leave Australia. The Applicant has both Lebanese and Australian citizenship. When the Applicant and Mr El Masri married there was, she said, no discussion between them as to where they were going to live; Lebanon or Australia. “I only wanted my husband with me”.
21. Mr El Masri, between 2000 and March 2004, was self-employed in Tripoli as a blacksmith. In his evidence before the Tribunal he said that he now “works in maintenance”.
22. Prior to 2002 Mr El Masri occasionally saw the Applicant and her mother. However, it was whilst she was in Lebanon with her children in 2002 that a deeper friendship developed between them which, on her later return to that country, and following her divorce in 2003, led to their subsequent marriage. The Applicant has not returned to Lebanon since she left in February 2004. Most days the Applicant said she and Mr El Masri are in contact with each other by telephone and email.
23. Mr El Masri is anxious for the Applicant and at least the three younger children to travel to Lebanon and live there with him. There is “no impediment”, he says, to them living in that country. He is “happy” to take care of them in Lebanon. He does not express a preference for living in Lebanon or Australia. He can provide his son, he says, with “all of his needs” in Lebanon; “I can take care of him”.
24. Mr El Masri had, prior to the present application, and in 1992, 1996 and 1998 applied for a visa to enter Australia. On each occasion his application was refused. He was aware that the present application might also be refused. As he now puts it “If god wills I will go to Australia, if not god wills”. Indeed, when he applied for the visa, he expected that it was possible it would not be granted to him. He married the Applicant with this awareness.
25. The Applicant is one of seven children, all of whom are living in Australia. Mr El Masri is one of 10 children, three of whom live in Australia and seven in Lebanon. As has been mentioned earlier in these reasons, no one of the siblings gave evidence by writing or orally in the proceedings. Mr El Masri said that his brothers did not mind if he lived in Australia or Lebanon.
character, seriousness of the conduct of mr el masri and recidivism
26. Mr El Masri has a substantial criminal record within the meaning of section 501(6)(7) of the Act. He does not pass the character test. Nevertheless in the context of considering the seriousness of his offences and the possibility of his re-offending, statutory declarations were made by Mr El Cherkawi and Mr Ammoun. Except for one sentence in the declaration of Mr El Cherkawi and the details of the periods for which they have each been resident in Australia, the declarations are identical. Yet Mr El Cherkawi says that his wife and himself wrote down his statement and “then sent it to the lawyer”. Mr Ammoun says that he dictated his statement to his wife who typed it up. He said that he read it and signed it in the presence of his wife and son and that no other person was present. Yet the signatures on both declarations purport to be witnessed by the same Justice of the Peace. Mr El Cherkawi said he “knew” of Mr Ammoun. Mr Ammoun said he had “heard “of Mr El Cherkawi. Mr El Masri on the other hand said of Mr El Cherkawi and Mr Ammoun that “they are good friends” of each other.
27. By reason of the above, little if any reliance can be placed upon the declaration of either witness. In their oral evidence, as in their declarations, they each sought to minimise the seriousness of Mr El Masri’s criminal record. They each maintained that he did not commit the offences, that he has learnt from his past experiences and he is “an honest and trustworthy person”. They each expressed their opinion as to his not posing a risk, a threat or danger to the Australian community.
28. On account of their apparent collusion and the inability of the Tribunal to rely upon their evidence, the weight to be given to the evidence of Mr El Cherkawi and Mr Ammoun is minimal. These are persons who said that they were “close friends” of Mr El Masri. They were prepared to give false evidence in his favour. Their falsity reflects adversely upon Mr El Masri.
29. Apart from his seeking to rely upon the support of his two above-mentioned friends, Mr El Masri himself sought to minimise the seriousness of his criminal conduct. He was aged 23 years, 24 years and 26 years at the time of his convictions. He said that the offence of stealing took place in 1992, a period of seven years elapsing before he was sentenced. It is not open to the Tribunal to go behind the convictions. But it is relevant to consider the nature of the offences and the conduct and behaviour of Mr El Masri since he committed them.
30. It is clear that Mr El Masri does not acknowledge or recognise his guilt. He is not remorseful. He blames the judicial system in Lebanon and, by inference, other people. He does not accept the seriousness of his misconduct.
health of the applicant
31. Dr Ahmed Mohamad, a General Medical Practitioner, gave evidence as to the current state of the Applicant’s health. She has recently experienced chest pains and severe palpitations. She had valve surgery 10 or 12 years ago and she is on medication. According to Dr Mohamad it will be difficult for her to travel until her condition is stabilised. She has of course travelled to Lebanon for extensive periods in 2002, 2003 and 2004.
32. The Applicant also experiences bi-polar disorder, evidenced by mood swings and impulsive acts. She is on medication for this disorder. Whilst Dr Mohamad, her practitioner since 1997, said that she needs support and affection, he was “not aware of her husband and the child was not mentioned much”. The Applicant’s mother is the source of her current support.
33. The Applicant has not been referred to a psychiatrist and the diagnosis of Dr Mohamad is said, by him, to be tentative.
discretionary considerations
34. As already indicated, I am satisfied that the Applicant does not pass the character test. Accordingly, the Tribunal is required to consider the discretionary factors available to it. I am to have regard to the three primary considerations and a number of other considerations already identified in these reasons.
35. I am satisfied that the criminal conduct of Mr El Masri was of a serious nature. Ministerial Direction 21 refers to conduct of a like nature.
36. There is not any evidence before the Tribunal of recent conduct of Mr El Masri; good or bad. However the false evidence of Mr El Cherkawi and Mr Ammoun and the strategy used by them, the Applicant and by inference Mr El Masri, in an endeavour to mislead the Tribunal does not bear witness to the goodness of the character and conduct of Mr El Masri. Indeed the reverse may be true. The attempt to put forward statements amongst which were attestations as to his being an “honest and trustworthy person” are not advanced by the otherwise unreliable evidence of these two persons.
37. I am satisfied, having in mind his inability to admit to the commission of his offences, his lack of remorse and his blaming of others that there is a likelihood that he may re-offend. The risk of recidivism is real. He may well, if in Australia, conduct acts of an anti-social nature such as he did when an adult in Lebanon. There is a deterrent aspect, but it is not overly significant. His conduct was not associated with a visa application. There is a warning, however, that like conduct may well prejudice a person’s application for a visa.
38. The Australian community expects persons to obey the law and would not accept a visa being granted to one who has engaged in anti-social conduct and who has the propensity to again act in a similar manner. The community is not to be put at risk.
39. There are five relevant children. There is not any evidence as to the present arrangements made for the elder two other than that their father lives in Lebanon and they are, and have been, cared for primarily by relatives in Australia. The other three children are living with the Applicant. She is able to take them with her to live in Lebanon. Mr El Masri is willing to care for them. The father of the six and seven year old children has no objection to them living in Lebanon. The best interests of the youngest child would be served if he is living in a household of which his father is a member; this is in Lebanon where his father has employment and family.
40. There will be some hardship experienced by the Applicant if she relocates to Lebanon. But she was aware of the criminal conduct of Mr El Masri at the time of marriage and should have been also aware that he may not have been granted a visa to enter Australia. Her family are in Australia but she and her family are frequent travellers to Lebanon and have lived there for extensive periods. The siblings of the Applicant and Mr El Masri have not evidenced any relevant concern.
41. On the basis of the matters set forth earlier in these reason, I am satisfied that the primary considerations relevant to the protection of the Australian community and the expectations of that community are in favour of a visa not been granted to Mr El Masri. The hardship that will be experienced by the Applicant and the evidence before the Tribunal is not sufficient to outweigh the primary considerations. Nor do the other non-primary considerations raise any significant issues in favour of the visa not been granted. Whilst the interests of the children have been considered, on the basis of the evidence before the Tribunal it cannot be said that their best interests would be served by Mr El Masri, their stepfather and father, living in Australia in preference to the family as a whole living in Lebanon.
42. Accordingly, for the reasons herein before set forth, I am satisfied that the primary considerations favouring the non-granting of a visa outweigh the other considerations. Accordingly, the decision under review is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis A.M. Q.C., Deputy President
Signed: A. Krilis
AssociateDate/s of Hearing: 14, 15 & 19 September 2005
Date of Decision: 30 September 2005
Representative for the Applicant: Mr Mohammed Maarbani
Representative for the Respondent: Mr A Cox
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